SOBA vs THE STATE
The petitioner sought post-arrest bail in a case registered under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The prosecution alleged that the petitioner entered the complainant's house at night and subjected the complainant's wife to Zina-bil-Jabr. The petitioner contended false implication, delay in lodging the FIR, advanced age, and a plea of alibi supported by affidavits. The State opposed the petition, arguing that the petitioner was named in the FIR, medical evidence showed he was capable of sexual intercourse, and sufficient material connected him to the crime. The Lahore High Court held that the petitioner was prima facie connected with the alleged offence, which fell within the prohibitory clause of section 497(1) of the Code of Criminal Procedure 1898, and that the defence pleas would be determined during the trial. The court laid down that where an accused is prima facie connected with a serious offence falling under the prohibitory clause and trial has commenced, bail ought not to be granted at that stage. The petition was consequently dismissed with a direction to the trial court to conclude the trial within four months.
- Whether an accused is entitled to post-arrest bail when prima facie connected with an offence falling under the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898?
- At what stage should the veracity of affidavits submitted in support of a plea of alibi be evaluated?
- Whether delay in lodging the FIR and advanced age are sufficient grounds for bail in heinous offences involving Zina-bil-Jabr?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' Soba, the petitioner through the instant petition has sought for post-arrest bail in case F.I.R. No,254, dated 4-9-2002 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 registered with Police Station Chak Baidi, District Pakpattan Sharif.
2. Briefly the facts of the prosecution case as contained in the F.I.R. Are that on the night, between 12/13-9-2002 the complainant's wife Mst. Sughran Bibi was asleep in the house. He scaled over the wall of his house and entered the same and subjected her (Mst. Sughran Bibi) to Zina-bil-Jabr. He (complainant) along with others on her noise when reached there, he (accused) picked up his Chadar and gun and ran away by scaling over the wall of the house.
3. It has been contended on his behalf that he has falsely been roped in; that there is delay of two days in lodging the F.I.R.; that he is aged about 65 years and it was not expected of him to have committed Zina-bil-Jabr with her; that he at the relevant time was at a village in District Okara and this has been mentioned in the affidavits of Lambardar of that village and others; and that he is behind the bars and previous non-convict.
4. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that he at the night time had scaled over the wall of the house of the complainant and entered the same and subjected his wife to Zina-bil-Jabr; that there is some explanation of delay in the F.I.R.; that the doctor has found him fit to perform sexual intercourse; that affidavits as indicated above have been procured to create defence; and that there is sufficient material on record to connect him with the alleged crime.
5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
6. Allegedly he on the above said date and time had scaled over the wall of the house of the complainant and entered the same and subjected his wife to Zina-bil-Jabr. He according to the report of the doctor was capable of performing the sexual intercourse. There is some explanation of delay in the F.I.R.
7. There is with the petition no affidavit, as mentioned by his side, has been produced. Even otherwise, the veracity of any such affidavit, if it may be so, will be seen at the trial.
8. However, suffice it would be to say here that he on the basis of material available on record is prima facie connected with the alleged offence. The same falls under the prohibitory clause of section 497(1), Cr.P.C.
9. His trial statedly has commenced the case.
10. I therefore, do not find him entitled to bail at this stage.
' The petition, thus, is dismissed.
' However, the learned trial Court is directed to dispose of the case against him within a period of four months from the date of receipt of order of this Court by it under intimation to the Deputy Registrar (Judicial) of this Court.