Haji ABID HUSSAIN vs THE STATE
This bail application arises from a criminal case registered under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein the petitioner sought post-arrest bail for alleged Zina-bil-Jabr. The core legal question was whether the petitioner was entitled to bail based on affidavits sworn by the victims in his favor and the delay in submitting the challan, despite the serious nature of the allegations. The Court dismissed the bail application, holding that the petitioner was prima facie connected to the heinous offence, which falls within the prohibitory clause of the Code of Criminal Procedure, 1898. The Court reasoned that the affidavits obtained from the victims after a significant delay appeared to be an attempt to tamper with the prosecution's case and did not constitute sufficient grounds to categorize the matter as one of further inquiry. The Court emphasized that the evidentiary value of such affidavits is a matter for the trial court to determine during the trial, rather than a basis for granting bail at the pre-trial stage.
- Does the procurement of affidavits from victims in favor of the accused after a significant delay constitute grounds for bail?
- Can affidavits sworn by victims in favor of the accused be treated as legal evidence to establish a case of further inquiry under the Code of Criminal Procedure 1898?
- Is the trial court the appropriate forum to determine the evidentiary value of affidavits produced by the accused during the bail stage?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
' Through this application the petitioner seeks bail after arrest in case F.I.R. No,323 of 2004, dated 28-7-2004 registered under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 at Police Station, Sadar Kahror Pacca, District Lodhran, wherein, the complainant Mst.
Zarina has levelled allegation that she along with Mst. Reshman was enticed away by the petitioner on the pretext of purchasing bangles and thereafter both of them were subjected to Zina-bil-Jabr by Muhammad Zia and the petitioner, respectively on gun point.
2. Learned counsel for the petitioner contends that Mst. Zarina and Mst. Reshman have sworn affidavits in favour of the petitioner; that challan has not been submitted so far; that the petitioner is behind the bars for the last about 2-1/2 months; that nothing has to be recovered from him; that Muhammad Siddiq P.W. Is a police Razakar and has also sworn affidavit on 16-9-2004 that he had not seen the occurrence; and that the case against the petitioner is one of further inquiry and he may be granted bail.
3. On the other hand, learned counsel for the State opposes this application on the ground that the petitioner is named in the F.I.R. With specific allegation of commission of Zina and the offence falls within the prohibitory clause of section 497, Cr.P.C.
4. I have heard the learned counsel for the parties and also perused the record. F.I.R. In the present case was lodged immediately after the alleged incident. The complainant prima facie had no enmity or grudge to falsely implicate the petitioner in the present case and even the learned counsel for the petitioner has failed to allege any motive for false implication of the petitioner by the complainant and the other victim in the present case. The petitioner along with others is alleged to have committed heinous offence, which falls within the prohibitory clause of section 497, Cr.P.C. Both the victims supported their version during the investigation and procuring of affidavits from the alleged victims, who appears to be poor ladies, after more than 2-1/2 months of the occurrence on the one hand prima facie amount to tampering with the prosecution case and on the other these affidavits cannot be termed as legal evidence to attract the expression "further inquiry". It is felt appropriate to left the matter upon the learned trial Court to determine the evidentiary value of such evidence. The reliance may be placed on PLD 1990 SC 83 and PLD 1977 Lah.
1261. For the present no case is made out for grant of bail as from the evidence on record the petitioner is prima facie connected with the offence.
' This petition stands dismissed.