NAWAZ alias MITHU vs THE STATE
This order arises from a post-arrest bail petition filed by the petitioner in a case registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Civil Lines, Gujranwala. The prosecution alleged that the petitioner abducted the complainant's daughter upon the instigation of his father and brother. The petitioner sought bail on grounds of delay in lodging the FIR, the exoneration and grant of bail to co-accused invoking the rule of consistency, lack of independent eyewitnesses, and his plea of minority. The High Court observed that the petitioner was directly nominated in the FIR with the principal role of abduction assigned to him. Furthermore, the abductee had not yet been recovered and the investigation was ongoing. Holding that the petitioner's role was distinct from the exonerated co-accused and that non-recovery of the victim precluded the grant of relief despite arguments on minority, the High Court dismissed the bail petition in limine.
- Whether the rule of consistency can be claimed for bail when the petitioner is assigned the principal role of abduction while co-accused were declared innocent?
- Does the non-recovery of an abducted person disentitle the principal accused from the grant of post-arrest bail during the investigation stage?
- Whether a plea of being seventeen years of age at the time of occurrence constitutes a sufficient ground for bail where the abductee remains unrecovered?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979
ORDER
' The petitioner seeks post-arrest bail in case. F.I.R. No,471 dated 3-9-2004 registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station, Civil Lines Gujranwala. Earlier his bail application was rejected by the learned Additional Sessions Judge Gujranwala, vide his order dated 7-12-2004.
2. The allegations against the petitioner as mentioned in the F.I.R. Are that he had abducted Mst.
Zarina. Daughter of the complainant Muhammad Raffique on the instigation of his brother Shahbaz and father Abdul Ghafoor.
3. It is contended by the learned counsel for the petitioner that the petitioner was arrested on 6-10- 2004 and is behind the bars since then; that two nominated co-accused of the petitioner, namely, Shahbaz and Abdul Ghafoor were declared innocent by the police during investigation and Shahbaz accused was granted bail by the learned Additional Sessions Judge, Gujranwala and on the basis of rule of consistency the petitioner is entitled to bail; that there is considerable delay in lodging the F.I.R. As the occurrence had taken place on 29-8-2004 but the matter was reported to the police on 3-9-2004 and that there is no witness of alleged abduction and the only witness is of Wajj Takkar who is the real nephew of the complainant. The petitioner at the time of occurrence was minor.
4. I have heard learned counsel for the petitioner and also perused the F.I.R. And the order of the learned Additional Sessions Judge dated 7-12-2004.
5. The petitioner is nominated in the F.I.R. As he had abducted Mst. Zarina, daughter of the complainant. It is an admitted fact that she has not been recovered so far. Petitioner's case is different from the case of the co-accused, namely, Shahbaz and Abdul Ghafoor as they were declared innocent by the police and Shahzad and Iqbal co-accused were nominated through a supplementary statement by the complainant. The major role of abduction has been assigned to the petitioner in the F.I.R. And the matter is still in investigation and non-recovery of the abductee up to now should not have been taken so lightly to state that if the abductee is minor the petitioner was also of the age of 17 at the time of occurrence. No ground for bail at this stage qua the petitioner. Resultantly, the bail petition is dismissed in limine.