ASHFAQ AHMED vs THE STATE
This petition for post-arrest bail arises from a criminal case registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, involving allegations of abduction and forcible sexual assault. The petitioner, Ashfaq Ahmed, sought bail after the Additional Sessions Judge dismissed his application. The core legal question was whether the petitioner was entitled to bail despite the victim's consistent incriminating statement and the existence of prima facie evidence connecting him to the crime. The Court held that the petition lacked merit and dismissed it. The ratio of the decision rests on the principle that where the victim of a sexual assault provides a consistent and detailed account of the incident in her statement under Section 161 of the Code of Criminal Procedure 1898, and where there is prima facie material connecting the accused to the offense, the opinion of an investigating officer regarding innocence does not entitle the accused to bail. Furthermore, the Court emphasized that the offense falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898, necessitating the denial of bail.
- Does the opinion of an investigating officer regarding the innocence of an accused override the victim's consistent statement in a bail application?
- Does an offense under the Offence of Zina (Enforcement of Hudood) Ordinance 1979 fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898?
- Is an accused entitled to bail when there is prima facie material connecting him to an offense entailing the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.---Ashfaq son of Muhammad Ashraf, the petitioner by filing the instant petition seeks post-arrest bail in case F.I.R. No,623, dated 22-9-2004, registered at Police Station Nowshera Virkan, District Gujranwala for an offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979).
2. The F.I.R. Had been recorded at the instance of Mst. Khalida Bibi wife of Muhammad Yaqoob, wherein she stated as under:-- That her daughter Mst. Rabia Batool, aged 17 years had been abducted by Muhammad Mushtaq son of Inayat Ali, Zaka Ullah and Ashfaq (the petitioner) sons of Muhammad Ashraf, who were all armed with fire-arms along with Mst. Fazeelat wife of Muhammad Mushtaq on 30-8-2004 at 11-30 a.m. By forcibly putting her in a car; on 17-9-2004, Mst. Rabia Batool returned home after extricating herself from the abductors and informed that she had been taken to village Attawa, where Muhammad Mushtaq and Ashfaq (the petitioner) had been subjecting her to forcible Zina one after the other; her abduction had been witnessed apart from her by Asif son of Muhammad Rafiq, resident of Ilyas Colony, Gujranwala.
' The motive according to the complainant was that Mst. Rabia Batool had been engaged to be married to Ashfaq (the petitioner), which engagement had later on been revoked and it was on account of this grudge, that her daughter had been abducted and subjected to forcible Zina.
3. The petitioner had been arrested on 1-11-2004. His plea for post-arrest bail had been turned down by the learned Additional Sessions Judge, Gujranwala vide order dated 4-4-2005. Hence, the instant petition.
4. I have heard the learned counsel for the parties at considerable length. The record brought by Muhammad Sarwar, S.-I., has also been perused.
5. It has been observed that Mst. Rabia Batool, the alleged abudctee and the victim of sexual assault, has fully supported the version as contained in the F.I.R. In her statement under section 161, Cr.P.C. She has given precise details about her abduction and subsequent conduct of the accused persons including the petitioner. The mere fact that one of the Investigating Officers had rendered opinion of innocence against the petitioner will not be of any benefit to the petitioner especially so when the victim stands firm on her allegations. It also transpires from perusal of the record that another attempt had been made by the petitioner in the intervening night of 18/19-10-2004 to abduct Mst. Rabia Batool, for which a separate case vide. F.I.R. No,721 of 2004 had been lodged by her mother. The perusal of record further reveals that prima facie there is ample material available connecting the petitioner with an offence entailing prohibitory clause of section 497(1),Cr.P.C.There is no merit in this petition, which is accordingly dismissed.