Umar Hayat And Other vs The State
This matter arises from a post-arrest bail application filed by the petitioners implicated in F.I.R. No. 62/05 registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Bhikhi, District Sheikhupura, on allegations of abducting Saima Bibi. The core legal question concerns whether post-arrest bail should be granted to accused persons when the police investigation has recommended the cancellation of the case and the alleged victim has stated in her statement under Section 161 of the Code of Criminal Procedure 1898 that she contracted a valid marriage of her own free will. The Lahore High Court held that the police report recommending cancellation creates a serious doubt as to the veracity of the F.I.R., the benefit of which must be extended to the accused at the bail stage regardless of whether the Magistrate has formally approved the cancellation report. The court laid down the key principle that in the criminal administration of justice, any doubt created at the bail stage must be resolved in favour of the accused, and a police recommendation for case cancellation is sufficient to furnish grounds for post-arrest bail.
- Whether post-arrest bail should be granted when the police investigation recommends the cancellation of the case?
- Does the absence of formal approval of a cancellation report by a Magistrate preclude an accused from claiming the benefit of doubt at the bail stage?
- Is the statement of an alleged victim recorded under Section 161 Cr.P.C. affirming a valid marriage sufficient to create reasonable grounds for granting bail in an abduction case?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
SYED SHABBAR RAZA RIZVI, J.- This bail application has been filed by petitioners as they stand implicated in F.I.R. No. 62/05, dated 6.2.2005 under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station, Bhikhi District Sheikhupura. The present application has been filed under Section 497, Cr.P.C, for post-arrest bail.
2. Briefly in F.I.R. No. 62/05 of Police Station, Bhikhi, the petitioners were alleged to have abducted Saima Bibi, daughter of the complainant.
3. The learned counsel for the petitioners contends that Saima Bibi was not abducted as alleged in the F.I.R, but she herself married with Kashif validly in accordance with Sharia and law. He further submits that the fact of Nikah between Saima Bibi and Kashif has been found in accordance with law during the investigation and for the same reason the case has been recommended for cancellation. He further submits that during investigation statement of Saima Bibi was recorded under Section 161, Cr.P.C, wherein she also stated that she is a lawfully wedded wife of Kashif.
4. The learned counsel for the complainant submits that Nikah was performed under pressure after abduction as slated in the F.I.R. He further submits that Investigating Officer did not verify Nikah as he was required under the law. He further submits that statement of Nikah Khan was not recorded which was necessary to ascertain the genuineness of Nikah. He also submits that though the case has been recommended for cancellation but it has not been approved and cancelled by the learned Magistrate and therefore, case should not be treated as cancelled at the moment. The learned counsel appearing for the State also endorses the above contentions of the learned counsel for the complainant.
5. I have heard the learned counsel for the parties and also consulted the record with their assistance, ln criminal administration of justice if any doubt is created at trial stage or bail stage, benefit of the doubt is given to the accused person and not to the prosecution. Undisputedly the case F.I.R. No. 62/05 has been recommended for cancellation that of course created a very serious doubt in veracity of contents of F.I.R. The objection of the learned counsel for the complainant that the same has not been approved or cancelled yet by the learned Magistrate is not relevant, at least at bail stage. The learned counsel for the complainant or complainant can agitate or contest on this point before the concerned Magistrate or can also move to the concerned police authority for re-investigation. For the purpose of bail, the doubt created by the report of the Investigating Officer, whereby he recommended for cancellation of the case, benefit goes to the petitioners.
Similarly, the statement of Saima Bibi is also on record whereby she has categorically stated that she married with her consent to Kashif and no one abducted her.
6. Therefore, for reasons recorded above, this bail application is allowed subject to furnishing bail bonds by the petitioners in the sum of Rs. 50,000/- each with one surety each in the like amount to the satisfaction of learned Trial Court.