NASEER AHMAD vs THE STATE
The petitioner sought post-arrest bail in a case registered under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 452 of the Pakistan Penal Code 1860, arising from allegations of attempting to commit rape and house trespass. The core legal question was whether the petitioner was entitled to post-arrest bail when the applicability of the penal provisions required further inquiry and the offenses did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The Lahore High Court held that since the petitioner was empty-handed, certain parts of the FIR story were found incorrect during the investigation, and the offenses did not attract the prohibitory clause, the case fell within the purview of subsection (2) of section 497, making bail a statutory right. The court laid down the principle that once a case warrants further inquiry under section 497(2), bail cannot be denied on the ground of the short duration of incarceration, as bail is not a substitute for punishment.
- Whether bail becomes a statutory right of the accused when a case falls within the purview of subsection (2) of section 497 of the Code of Criminal Procedure 1898?
- Does an offense under section 452 of the Pakistan Penal Code 1860 attract the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Can bail be denied to an accused solely on the ground that he was arrested only a month prior to the bail application?
- Section 18, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 452, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' The petitioner has sought his post-arrest bail in case F.I.R. No,239 registered at Police Station Uch Sharif on 25-7-2003 for offences under section 18 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, read with section 452, P. P.0
2. Succinctly, the allegation against the petitioner is that he was trying to untie the trouser of Mst.
Zarina in order to commit rape with her. During the attempt Mst. Zarina raised alarm which attracted Ghulam Farid, father of Mst. Zarina's husband to the spot who rescued Mst. Zarina. It is added in the F.I.R. That the complainant alongwith other P. Ws. Overpowered the petitioner and locked him in a room. However, he was rescued by Shabbir Ahmad, Jahangir and Fayyaz Ahmad rho were armed with hatchets.
3. The petitioner was arrested in this case on 3-10-2003 and has been sent to judicial lock-up after completion of investigation.
4. The learned counsel for the petitioner has argued that the petitioner has been roped in this case due to suspicion and that the offence did not attract the prohibitory clause of section 497, Cr.P.C.
Conversely, the learned counsel for the complainant as well as the learned counsel for the State have opposed this application and have argued that the petitioner was named in the F.I.R. Which was lodged in the morning; that the petitioner had committed a heinous offence by entering into the house of the complainant and by attempting to commit rape with Mst. Zarina. It has further been argued that the petitioner was arrested only a month ago and, therefore, did not deserve the concession of bail.
5. I have heard the learned counsel for the parties and have also gone through the record of the case. It has been noticed that the petitioner was admittedly empty-handed at the time of occurrence; according to the facts given in F.I.R. Neither the petitioner had removed his trouser nor that of Mst. Zarina. In the circumstances whether an offence under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is made out or not requires further probe and inquiry within the purview of subsection (2) of section 497, Cr.P.C. As far as section 452, P.P.C. Is concerned, the same does not attract the prohibitory clause of section 497, Cr.P.C. Part of the story as set down in the F.I.R. Was found to be incorrect as Shabbir, Jahangir and Fayyaz Ahmad who had allegedly rescued the petitioner from the custody of the complainant were found to be innocent. As far as the argument of the learned counsel for the complainant that the petitioner was arrested only a month ago is concerned, the same is hardly tenable in law as once the Court comes to the conclusion that the case of the accused falls within the purview of subsection (2) of section 497, Cr.P.C. The bail becomes a statutory right of the accused and cannot be denied. Even otherwise, bail is not a substitute for punishment. I am fortified in my view by placing reliance on Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585.
6. In sequel to what has been stated above I admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs,20,000 (Rupees twenty thousand only) with one surety in the like amount to the satisfaction of the trial Court.