GHULAM AKBER and anothers vs THE STATE
This matter concerns a post-arrest bail application filed by applicants Ghulam Akbar and Zafar Iqbal, who were charged under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and the Pakistan Penal Code, 1860, following an allegation of abduction. The core legal question was whether the applicants were entitled to bail given the unexplained delay in lodging the First Information Report, the lack of recovery of the abductee from the applicants' possession, and the prosecution's subsequent alteration of the charges in the challan. The Court held that the applicants were entitled to bail, observing that the inconsistencies in the prosecution's case, specifically the deletion of the original abduction charge and the circumstances surrounding the abductee's recovery, warranted further inquiry into their guilt. The Court established the principle that where the prosecution's narrative is undermined by significant delays, procedural inconsistencies in the challan, and the absence of recovery from the accused, the case against the accused becomes one of further inquiry, thereby entitling them to the concession of bail pending trial.
- Does the deletion of specific charges in a challan and the subsequent substitution of others constitute grounds for further inquiry in a bail application?
- Is a delay in lodging an FIR without explanation a relevant factor for the grant of bail?
- Does the failure to recover the victim from the possession of the accused support a plea for bail?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 109, Pakistan Penal Code 1860
- Section 10(4), Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
1. ' MRS. YASMIN ABBASEY, J.---Applicants Ghulam Akbar and Zafar Iqbal, registered an F.I.R. No,146 of 2005, under section 16 Zina Ordinance, read with section 109, P.P.C., at Police Station, Korangi Industrial Area, Karachi, have moved this bail application.
2. ' Facts of the case as appearing in the F.I.R. Are that on 4-8-2005, it was reported by the complainant Abdul Hameed son of Waryam Khan that in the morning of 31st of July, 2005, when he woke up, he found that his wife Mst. Mumtaz is not present. On inquiry he came to know that one Fayyaz Ahmed, when used to reside with him, but when he developed illicit relation with his wife he was turned out of the house, the very Fayyaz Ahmed with the help of his companion, namely Zafar and Akbar has abducted Mst. Mumtaz with intent to commit Zina.
3. ' It is pointed out by learned counsel for applicant that incident of this case had happened on 31-7- 2005, whereas F.I.R. Has been lodged on 4-8-2005 with no explanation of this delay. It is submitted by the learned counsel for the applicant that in fact his applicant Ghulam Abkar is brother-in-law of co-accused Fayyaz and accused Zafar Iqbal is nephew of complainant and as there is previous enmity in between them therefore, they have been falsely implicated in the matter. Learned counsel referring the contents of F.I.R. Has argued that no allegation of committing Zina against both the accused persons as alleged is appearing. The challan submitted on 15-10-2005 after deletion of section 16 of Zina Ordinance and inserting section 10 of clause 4 Zina Ordinance is sufficient proof that of that Mst. Mumtaz was not abducted by them and case has been foisted on them. It is pointed out by the learned counsel for applicants that abductee Mst. Mumtaz Begurn was not recovered from their possession but was found in the premises of City Court wherefrom Mr. Kazim, Advocate, had admitted her to Darul Aman. Medical report submitted after three days of her recovery is also not in accordance with law. PLD 1983 Federal Shariat Court 204, has been referred in this reference, wherein it has observed "that the report of Chemical Analyser and semen stained Shalwar not relevant as woman being married and had been with her husband till 3 days before her arrest, grouping of accused's semen not done for matching, conviction under section 10 set aside in circumstances of case". Learned counsel has further referred a case reported in 2000 PCr.LJ, 1948, wherein it is observed that "prosecution story relating to forcible removal, of victim girl from her house to the house of accused was either an exaggeration of a complete concoction as trespassing .Of 3/4 persons into courtyard of victim's house, where her parents were also sleeping and her forcible removal from her house appeared to be a mystery and quite improbable".
4. ' Learned counsel for the State, Mrs. Shahida Jatoi, has opposed this bail application on the ground that the abductee fully impleaded both the accused persons in her statement and learned trial Court while making reference of her 164 statement has observed that Mst. Mumtaz had named both Akbar and Fayyaz as the persons who abducted her but the subsequent conduct of prosecution of deleting section 16 of Zina Ordinance and submitting challan under section 10(4) of ibid makes out a case of further inquiry, complied with the fact of delay in lodging F.I.R., and that abductee was not recovered from their possession.
5. ' In view of the facts discussed above and case cited by the learned counsel for the applicants the applicants are entitled to grant of bail, hence the applicants are granted bail subject to furnishing of sureties in the sum of Rs,2,00,000 each (Rupees two Lacs only), P.R. Bond in the like amount to the satisfaction of the Nazir of the trial Court.
Cited by 1 case
- SHAFQAT vs The STATE 2013 YLR 1311