Idrees Vs The State and others

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH.

(Judicial Department) Cr.M.B.A. No. 587-A/2025

ORDER

Date of hearing: - 03.10.2025 Petitioner:- (Idrees) by Mr. Asif Masood Tanoli, Advocate.

Respondents:- (The State & another) by Sardar Basharat, Additional Advocate General and complainant by Mrs. Sehrish Habib Dilazak, Advocate.

SADIQ ALI, J:-Through this single order, the instant post-arrest bail petition filed by accused/petitioner Idrees as well as connected Cr.MBCA No. 631- A/2025 and Cr.MBCA No. 655-A/2025 preferred by the complainant/petitioner for cancellation of bail of respondents Muzammal and Ehsanullah, are taken up together as all three matters arise out of the same FIR bearing No. 457 dated 27.07.2025 under Section 376/355/506/34 PPC read with Section 53 CPA of Police Station Rajoya, District Abbottabad.

2.The report regarding the alleged occurrence was made by victim Mst. Haleema Riasat aged about 16/17 years, accompanied by her father that Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

she developed a contact with Arshad Mehmood who obtained her mobile number and about three months prior, he told her to come to the ravine of village Rajoya. When she arrived there, the accused on the false promise of marriage, committed forcible Zina with her and also recorded her video. Thereafter, on different occasions, accused/petitioner Ehsan along with co-accused, who though were not named in the FIR, but later on identified by the complainant as Muzammil and Idrees, also committed rape on her and she was blackmailed on the threat of their dissemination. By orders dated 26.08.2025 and 08.09.2025, the learned Additional Sessions Judge- VI/MCTC, Abbottabad enlarged respondents Muzammal and Ehsanullah on bail, inter alia, on the grounds that Muzammal was not named in the FIR and that the FIR was lodged with delay. Through order dated 13.08.2025, the learned Additional Sessions Judge-VIII, Abbottabad declined post- arrest bail to Idrees who has now approached this Court, seeking post arrest bail, whereas the complainant has sought cancellation of bail granted to co-accused Ehsanullah and Muzammil.

Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

3.Arguments heard and available record gone through.

4.Record reveals that no doubt, except accused Ehsanullah, the complainant was unable to name his companions in the FIR, but during identification parade, she was able to identify co-accused Muzammil and Idrees. The material presently available on record, including the complainant’s statement, statements recorded under Section 161 Cr.P.C., arrest and the investigative steps concerning the alleged obscene recordings, prima facie connects all the three accused with the commission of offence concerning family honour of a minor victim. Non-nomination of Muzammal in the FIR is not decisive once subsequent investigative developments tentatively implicate him. Likewise, the explanation for delay advanced by the complainant/victim, in the context of honour, stigma and blackmailing, sufficiently justifies the delay in view of the verdict of apex Court in the case of “Zahid and another Vs. The State” reported as Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

2020 SCMR 590, wherein it has been held by the apex Court that;

“Undoubtedly, the FIR was registered after a day of the crime having been committed, however, the fact that the modesty of a married woman was violated by sexual assault makes understandable the apprehension of the victim and her family in approaching the police immediately. Delay in reporting the crime to the police in respect of an offence involving a person's honour and reputation and which society may view unsympathetically could prey on the minds of a victim and her family and deter them to go to the police. In the case of Hamid Khan v. State3 a delay of three days in reporting the crime to the police was considered immaterial. In the present case the delay could also be explained because the victim and her family had elected for her medical treatment. The victim was examined on the day of the crime by Dr. Shahida Parveen (PW-4). The lady doctor (PW-

4)also testified that there were some marks of violence on the victim: nail marks on her right and left cheeks and swelling on her right forearm, Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

suggesting that the victim was forced and restrained; and that, "the presence of human sperm in internal vaginal swabs constitutes the likelihood of sexual intercourse." The victim (PW-3) herself testified about the sexual assault on her by the petitioners, but was not cross-examined on this part of her testimony. The chemical examiner's report produced by the lady doctor states that the seals of specimens sent for chemical examination were received intact and it was the chemical examiner who had broken open the seals, therefore, the contention of the petitioners' learned counsel regarding the safe transmission of the specimens is discounted both by this fact as well as by the fact that no question was put regarding tampering of the said seals. As regards the absence of DNA report, this is not sufficient to secure an acquittal because there was substantial corroboratory evidence to secure the conviction of the petitioners beyond reasonable doubt.”

Similarly, in the case of “Irfan Ali Sher Vs.

The State” reported as PLD 2020 SC 295, Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

honourable Supreme Court of Pakistan was pleased to hold that;

“In rape cases victims and/or their families may be reluctant to come forward to promptly report the crime because of the trauma that has been suffered and they may have a perception of shame or dishonour in having the victim invasively examined by a doctor. The delay in reporting a sexual assault to the police is therefore not very material as held by this Court.”

In the case of “Mehboob Ahmed Vs. The State” reported as 1999 SCMR 1102, it was reiterated that ostensible delay in reporting rape cannot be used to penalize the victim; courts must consider social taboos and the victim’s predicament before drawing adverse inferences at the bail stage.

Relevant observations of the apex Court are reproduced for ready reference;

“As to the apparent delay in lodging of the F.I.R., we cannot be unmindful of the prevailing taboos in our society. Even in modern day advanced societies, for and on account of the prevalent predilections, many a cases of rape go unreported. A victim of rape should not be penalized on Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

account of ostensible delay in reporting what she has undergone. On the contrary, kindness, encouragement and understanding are the requirements to approbate a victim's difficult decision to purge the society of perpetrators of such heinous offences.”

Therefore, mere delay in reporting the matter to the local police, in the cases involving family honour, would not entitle an accused to the grant of bail.

5.In Muzammal’s case, undue premium was placed on non-nomination without a meaningful appraisal of the post-FIR material that tentatively connects him. The petition for the grant of bail must be decided on a tentative appraisal of the entire material collected during investigation, both for and against the accused; a narrow reading of the FIR alone is legally insufficient. The record clearly demonstrates that the victim was able to identify accused Muzammil in the identification parade, conducted by the concerned Judicial Magistrate. Sufficient material was available on record to prima-facie connect accused Muzammil Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

with the commission of offence. Indeed, as per material collected during the course of investigation, all the three accused were prima-facie, vicariously liable for the commission of the offence of moral turpitude and grant of bail to the accused merely on the ground of delay in lodging of report or non- nomination of FIR, clearly amounts to a patent illegality, which cannot be overlooked by this Court.

This Court is conscious of the fact that the principle governing grant and refusal of bail are altogether different and a different touchstone is required to be adopted while deciding petition for the grant of bail and petition for cancellation of bail. The grounds to be looked into, while dealing an application for cancellation of bail, have been provided by the apex Court of the country in the case of “Sharif Khan Vs.

The State” reported as 2021 SCMR 87, which include;

i)If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.

ii)That the accused has misused the concession of bail in any manner.

iii)That accused has tried to hamper prosecution evidence by persuading/pressurizing

Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

prosecution witnesses.

iv)That there is likelihood of absconsion of the accused beyond the jurisdiction of court.

v)That the accused has attempted to interfere with the smooth course of investigation.

vi)That accused misused his liberty while indulging into similar offence.

vi)That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused. In the case in hand, the case of respondents in BCA petitions No. 631-A/2025 and 655-A/2025, squarely falls within clause (i) because the order passed by the learned trial Court is not only erroneous and factually incorrect but has also resulted into miscarriage of justice.

6.The nature of the accusations against the accused in respect of repeated sexual assault accompanied by creation and threatened dissemination of obscene recordings, raises concrete and immediate risks of witness intimidation, evidence tampering and re-victimization, besides the severity of punishment (death or imprisonment for life under Section 376 P.P.C. read with Section 53 CPA). These are relevant considerations at the Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

bail stage and weigh against the grant or retention of bail.

7.As regards Idrees, as discussed earlier, the tentative appraisal of the record attributes identical role to each of the accused and their roles cannot be bifurcated in view of the material collected so far, during course of investigation. The allegations relate to the sexual assault of a minor, compounded by the recording of obscene footage and subsequent blackmail predicated on that material. Such conduct is an egregious affront to the dignity, bodily integrity, and autonomy of the child, and strikes at the very foundations of public morality and the rule of law. In the contemporary context, where incidents of this nature have regrettably increased, the courts are obliged to respond with a firm, resolute, and deterrent application of the law, eschewing misplaced leniency, in order to protect the vulnerable, prevent re-victimization, and preserve societal order. Offences of this character not only devastate the survivor but also corrode the social fabric by normalizing exploitation and silencing Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

victims through fear. It is, therefore, imperative that the justice system adopt a robust stance that ensures accountability, safeguards the integrity of the investigation and the evidence, reassures the community of the law’s protective reach, and reinforces the State’s commitment to nurturing its youth as dignified citizens and assets, never as stigmatized casualties of impunity.

8.Consequently, Cr.MBCA No. 631-A/2025 and Cr.MBCA No. 655-A/2025 are allowed; the bail orders dated 26.08.2025 and 08.09.2025 passed by the learned Additional Sessions Judge-VI/MCTC, Abbottabad are set aside and bail already granted to accused/respondents Muzammil and Ehsanullah stands recalled. The post-arrest bail petition of Idrees is dismissed. The learned trial Court shall proceed with the trial of the accused without being uninfluenced by any observation herein, which are purely tentative and confined to the bail jurisdiction.

9.These are the detailed reasons of short orders of even date, recorded in Cr. M BCA No.

631-A/2025 and 655-A/2025.

Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali

Announced Dt: 03.10.2025

JUDGE

Tufail.(S.B.) Hon’ble Mr. Justice Sadiq Ali