MUSHTAQ AHMAD vs STATE
This matter concerns a petition for post-arrest bail filed by the petitioner, who is accused in FIR No. 333/04 of an offence under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and Section 377 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to the concession of bail given the allegations of unnatural offence, the medical evidence, and the status of the trial proceedings. The Court held that the petitioner was not entitled to bail, noting the existence of incriminating medical evidence and statements from the victim and complainant on the record. Furthermore, the Court observed that the trial had already commenced and witnesses were being summoned. Relying on established judicial practice, the Court affirmed that when a trial is actively underway, superior courts generally refrain from deciding bail applications on merits to avoid prejudicing the trial, preferring to leave the matter to the discretion of the trial judge. Consequently, the bail petition was dismissed.
- Should a bail application be decided on merits when the trial has already commenced?
- Does the commencement of a trial justify the refusal of bail by a superior court?
- Is a superior court required to avoid deciding bail applications on merits to prevent prejudice to the trial?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
ORDER
The petitioner has sought his post arrest bail in case FIR No, 333/04 dated 18.9.2004 registered u/S. 12 of the Offence of Zina (Enf. of Hudood) Ordinance VII of 1979 read with Section 377 PPC at Police Station Kassowal District, Sahiwal.
2. Precisely the allegation against the petitioner as per prosecution story is that he alongwith other co-accused subjected Abdul Majeed aged 14 years to un-natural offence after drinking liquor and also administering liquor to the victim.
3. Learned counsel for the petitioner submits that two of the alleged eye-witnesses of the occurrence do not support the prosecution version; that the complainant is not an eye-witness of the alleged occurrence and the victim is aged about 19 years and was found drunk at the time of medico legal examination and the same negates the prosecution story; that there is un-explained delay of 28 hours in lodging the FIR; that the petitioner was arrested on 18.9.2004 and is behind the bars so far. Further submits that co-accused Sarwar has been declared innocent during the course of investigation and case against the petitioner is that of further inquiry and mere commencement of trial is not a ground for refusal of bail. Reliance has been placed on "Naqi Hussain Shah us. The State" (1992 SCM R 600), "Muhammad Anar Vs. The State" (2004 M LD 144) and "Muhammad Ismail vs. Muhammad Rafique and another" (PLD 1989 S.C. 585).
4. On the other hand learned counsel for the State assisted by learned counsel for the complainant has vehemently opposed the bail petition and submits that the petitioner is real culprit and is not entitled for the concession of bail. Further submits that trial has commenced and at this stage, Courts avoid to discuss the merits of the case in bail petitions. He has relied on Said Akbar and another vs. Gul Akbar and another" (1996 SCM R 931), "Mian Dad vs. The State" (1992 SCM R 1418) and "Allah Ditta and others vs. The State" (1990 SCM R 307).
5. Arguments heard record perused.
6. Medical Certificate is available on the record according to which the injuries are also obvious on the victim. Statements of the victim and complainant are also available on record which are against the petitioner. Trial in the case has commenced and case is fixed for evidence by the learned trial Court and attendance of witnesses has also been marked. Even in the case law cited by learned counsel for the petitioner i,e, "Muhammad Ismail vs. Muhammad Rafique and another"
(PLD 1989 S.C. 685) it has been held that it is practice of the superior Courts that when a case is fixed for hearing, ordinarily the bail application is not decided on merits and matter is often left to the discretion of the trial Judge and this practice is directly relatable to the "question of prejudice".
For what has been discussed above the petitioner does not deserve for the- concession of bail and the same is dismissed.