Aon Abbas Vs The State etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Misc. No.47124-B of 2026

Aon Abbas Versus The State, etc.

Sr. No. Of Date of Order with signatures of Judge, and that of parties of counsel, where necessary. Order/Proceeding Order 03.09.2026 Rai Bashir Ahmad, advocate for the petitioner. Mr. Abdul Jabbar Dogar, DPG with Tahira Taj, Inspector/SHO & Atta Muhammad, SI for the State. Mr. Jam M. Shahzad Iqbal, advocate with the complainant.

Through this petition under section 497 Cr.P.C., the petitioner seeks post-arrest bail in case FIR No.996 of 2024, dated 22.08.2024, registered under sections 376 and 376(iii) PPC at Police Station Gogera, District Okara.

2.Precisely, the allegation against the petitioner is that on the intervening night of 15th and 16th of August, 2024 at about 12:00 a.m., the petitioner while armed with pistol along with one unknown co-accused person forcibly committed zina with the daughter of the complainant namely, Sobia Fatima, aged about 12/13 years, hence this

FIR.

3.Arguments heard. Record perused.

4.A tentative perusal of record reveals that the petitioner has been nominated in this case for allegedly committing rape upon the victim. Learned Deputy Prosecutor General as well as the learned counsel for the complainant have opposed this bail petition primarily on the ground that the accusation is serious in nature and falls within the prohibitory clause of section 497, Cr.P.C. There can be no second opinion about the gravity of offence under sections 376 and 376(iii), PPC. However, the seriousness of an accusation cannot by itself be treated as determinative at bail stage. The Court is still required to make a tentative assessment of the material collected during investigation, so

as to ascertain whether there exist reasonable grounds for believing that the accused is guilty of the offence alleged against him or whether the material calls for further inquiry within the meaning of section 497(2), Cr.P.C. Reference in this regard may be made to “Habibullah v. The State” (2025 YLR 1223), wherein it was observed as follows:- “It is the well-established legal principle that the severity of an offence alone is not sufficient ground to deny a bail plea. The fundamental concept underlying bail is that the liberty of an innocent person should not be restricted until proven otherwise.”

5.It is equally well settled that while deciding a bail petition, the Court is not required to conduct a deeper appreciation of evidence, an exercise that properly belongs to the Trial Court. At the same time, the tentative nature of this jurisdiction does not mean that the Court should mechanically confine itself to the FIR and ignore material subsequently collected during investigation. The tentative assessment contemplated under section 497, Cr.P.C. must be meaningful and based upon the entire material available at that stage. Where medical and forensic evidence forms part of the investigation, it cannot be excluded from consideration merely because the matter is at the pre-trial stage. The prosecution’s own material, whether apparently inculpatory, exculpatory, or requiring further examination has to be tentatively considered as a whole, since even at the bail stage the burden of proof rests upon the prosecution. Reliance may be placed upon “Akhtar v. Khawas Khan and another” (2024 SCMR 476), wherein it was observed as follows:- “the basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt’ on prosecution also applies at all stages including the pre-trial stage, and even at the time of deciding whether the accused is entitled to bail or not.”

6.The record reveals that the alleged occurrence took place during intervening night of 15 & 16 August, 2024 at about 12:00 a.m. The victim, however, was not medically examined immediately and her medical examination was conducted pursuant to an order of the learned Magistrate, after a delay of about seven days. Further no date of medical examination of the victim is mentioned in the MLR and the final opinion was given by the doctor 10.10.2025, hence the date of examination cannot be ascertained from the certificate itself. These circumstances form part of the material requiring tentative consideration. It is clarified that neither the delay in medical examination nor the absence of a date on the medico-legal certificate is by itself decisive for the prosecution case nevertheless where the case is to be tentatively assessed in the light of medical and forensic material, such circumstances cannot be ignored and must be considered along with the remaining material on record.

7.The allegation of rape could only be corroborated by medical evidence. On examination, the relevant areas were checked for tears, lacerations, bruises, abrasions, swelling and hyperemia, and the relevant column of the medico-legal certificate shows the finding as “Nil.” The report further reveals no bruise or hyperemia on the thighs private parts or abdomen. Although the Medical Officer recorded “hymen ruptured 1 finger,” she gave no specific opinion as to the cause, age or freshness of the rupture, nor did she medically connect it with the alleged occurrence. No bleeding or staining with blood was recorded and the column relating to seminal stain was likewise marked “Nil.” In the absence of a specific medical opinion as to the cause of rupture, it remains to be seen how a ruptured hymen, by itself, can conclusively be

related to the alleged occurrence. Other possible causes of rupture of the hymen are described in Medical Jurisprudence and Toxicology (Law, Practice and Procedure), 3rd Edition, 2010, by Dr. S. Narayan Reddy, as referred to in “Amjad Ali v. State and another” (2024 MLD 1563), as follows:- Causes of Rupture of Hymen: (1) An accident, e.g., a fall on a projecting substance or slipping on furniture or a fence or while playing at seesaw. In these cases tearing of the perineum occurs and usually injuries on other parts of the body will be seen. Such hymenal tears are never associated with abrasion and bruising of the margins. Accidental straddle injuries usually involve periurethral tissues, labia, hymen and mons. Separation of the thighs forcibly in children will not rupture the hymen, unless perineum is ruptured. Hymen does not rupture by riding, jumping, dancing, etc. (2) Masturbation, especially with some large foreign body. Hymen is not injured in most of cases because manipulation is usually limited to the parts anterior to the hymen. Labia minora and clitoris are enlarged in such cases. The vaginal orifice may be dilated and edges of the hymen may show scratches. (3) Surgical operation and gynaecological examination. (4) Foreign body, e.g. sola pith introduced into vagina for rendering very young girls fit for intercourse (aptae viris). Vaginal stretching through insertion of increasingly larger objects (sex toys, vegetables or household objects) may be performed. (5) Ulceration from diphtheria, fungus or other diseases. (6) Scratching due to irritation of the parts from lack of cleanliness. (7) Sanitary tampon may sometimes rupture the hymen” .

At this stage, it would be neither appropriate nor permissible to select one medical observation and examine it in isolation from the rest of the medical record. The significance and tentative effect of the medical evidence can only be appreciated by considering all the findings together.

8.The matter assumes further significance on examination of the subsequent medical and forensic record. The Medical Officer did not initially give a final opinion; instead, she deferred it until receipt of the report of the Punjab Forensic Science Agency. According to PFSA Report No. PFSA 24-767488-DNA-115882 dated

29.05.2025, no seminal material was detected on the tested evidence items. The report also contains observations regarding circumstances that may affect the detection of seminal material, an aspect that is ultimately for the learned trial Court to appreciate in light of the evidence. For present purposes, it suffices to note that no seminal material was detected. Significantly, after receipt of the PFSA report, the Medical Officer considered the forensic material together with the findings of the physical examination and thereafter recorded her final opinion in the following terms:

“In my opinion after physical examination and PFSA report there is no sufficient evidence to suggest that the sexual offence had been committed.”

9.This opinion cannot be considered independently of the circumstances in which it was rendered. The Medical Officer first conducted the physical examination and recorded her findings and deferred her final opinion until the forensic report became available. It was only after receiving and considering the PFSA report that the final opinion was recorded. The final medical opinion was thus not based upon an isolated circumstance but was expressed after considering both the physical examination and the forensic material. Its ultimate evidentiary worth is, of course, a matter for the learned trial Court to determine after recording evidence, nevertheless, at the bail stage, a Court cannot altogether ignore a final medical opinion forming part of the prosecution record. The prosecution cannot rely upon one part of its material while asking the Court to disregard another part of the same investigation merely because it favours the accused.

10.It is further evident from the record that the statement of the victim under section 164, Cr.P.C. has not

been recorded. A circumstance also relevant, though only for the limited purpose of assessing the material presently available.

11.None of the above circumstances is being treated as conclusive of the prosecution case nor is this Court undertaking an exercise to determine the ultimate truth or falsity of the accusation this exercise belongs exclusively to the learned trial Court. The question at this stage is narrower whether upon a tentative but meaningful assessment of the entire material presently available there exist reasonable grounds for believing that the petitioner is guilty or whether the material requires further inquiry within the contemplation of section 497(2), Cr.P.C.

12.The expression “further inquiry” was explained by the Honourable Supreme Court in “Fahad Hussain and another v. The State through Prosecutor General Sindh” (2023 SCMR 364) in the following terms:- “The perception and discernment of the expression ‘further inquiry’ is a question which must have some nexus with the result of the case and it also pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime.”

The Honourable Supreme Court further observed:- “The raison d’etre of setting the law into motion in criminal cases is to make an accused face the trial and not to punish an under trial prisoner or let him rot behind the bars”.

13.The principle emerging therefrom is that “further inquiry” does not amount to a declaration of innocence. It only signifies that upon tentative assessment of the material, a reasonable question arises regarding the involvement of the accused which cannot appropriately be resolved without recording evidence at trial. The jurisdiction under section 497(2), Cr.P.C. is therefore attracted where the material creates a reasonable doubt as

to the existence of reasonable grounds for believing the accused guilty. At this stage, this Court is not required to resolve the doubt finally. It is sufficient that the doubt is real, reasonable, and has a nexus with the result of the case.

14.It is also settled that medical and forensic material cannot be excluded from consideration at the bail stage merely because its ultimate evidentiary value is to be determined at trial. In “Abdul Ghaffar v. The State and others” (2016 SCMR 1523), the Honourable Supreme Court considered the medical and forensic material on record while determining whether the case required further inquiry. Similarly, in “Haibat Khan v. The State and others” (2016 SCMR 2176), medical findings and forensic evidence were taken into account while considering the question of bail. The principle emerging from these authorities is that where the investigation itself produces medical and forensic material, such material cannot be ignored at the bail stage. More particularly, where a Medical Officer postpones her final opinion until receipt of a forensic report and subsequently records that opinion after receiving it, the physical findings, the forensic report and the final medical opinion have to be considered cumulatively. A tentative assessment cannot be made by isolating one circumstance from the remaining prosecution material.

15.The law relating to bail is also founded on the fundamental principle that every accused is presumed innocent unless found guilty by a competent Court. In “Akhtar v. Khawas Khan and another (2024 SCMR 476), the Honourable Supreme Court reaffirmed that every person is presumed innocent unless found guilty by a competent Court and that the prosecution carries the

burden of establishing guilt. Similarly, “Gul Muhammad v. The State” (2023 SCMR 857) emphasises the importance of personal liberty, while “Zaigham Ashraf v. The State and another” (2016 SCMR 18) reiterates that the law of bail is not intended to punish an accused before conviction.

16.Applying the above principles to the facts of the present case, the petitioner is undoubtedly nominated in the FIR and the accusation against him is serious. The matter, however, does not end with the nomination of the petitioner or the gravity of the allegation. The Court is required to examine, though tentatively, the entire material produced during investigation. In the present case, the investigation has produced medical and forensic material that cannot be ignored. The circumstances relating to the delayed medical examination, the absence of a date on the medico-legal certificate, the physical findings recorded by the Medical Officer, the absence of any description of the hymenal rupture as fresh or recent, the PFSA report, the final opinion of the Medical Officer in a categorical manner and the absence of statement of victim under section 164, Cr.P.C., when considered cumulatively and without any final comment upon their evidentiary worth, raise a question requiring further inquiry.

17.The significant legal aspect of the case is that the final medical opinion forms part of the prosecution’s own record and was rendered after the Medical Officer had considered both the physical examination and the PFSA report. At the bail stage, such material cannot be selectively excluded from consideration. Where the prosecution’s own investigation produces medical and forensic material which, when tentatively assessed as a

whole, creates a reasonable question regarding the existence of reasonable grounds for believing the accused guilty, the Court is required to consider the case within the framework of section 497(2), Cr.P.C. The Court is not required to pronounce upon the ultimate innocence or guilt of the accused; that determination must necessarily await trial.

18.Keeping in view the entire material available on record, and without making any final observation on the merits of the case, this Court is of the tentative view that the case of the petitioner calls for further inquiry into his guilt within the meaning of section 497(2), Cr.P.C.

19.Consequently, this petition is allowed and the petitioner is admitted to post-arrest bail, subject to his furnishing bail bonds in the sum of Rs. 1,000,000/- (Rupees One Million only) with two sureties in the like amount, to the satisfaction of the learned Trial Court.

20.Needless to observe, the observations made hereinabove are tentative in nature and have been recorded only for deciding the present bail petition. The learned trial Court shall decide the case strictly on the basis of the evidence produced before it, in accordance with law, and without being influenced by any observation made hereinabove.

(GHULAM SARWAR NIHUNG)

JUDGE

Announced, dictated, prepared and signed on 03.09.2026.

Approved for reporting.

JUDGE

Iftikhar