MUSHTAQ AHMAD vs THE STATE
This matter concerns a petition for post-arrest bail filed by the petitioner, who is accused of committing an unnatural offence under Section 377 of the Pakistan Penal Code 1860 and Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question was whether the petitioner was entitled to bail given the allegations, the evidentiary record, and the fact that the trial had already commenced. The Court examined the medical evidence, which indicated injuries on the victim, and noted that the statements of the victim and the complainant implicated the petitioner. Furthermore, the Court observed that the trial had commenced and was currently at the stage of recording evidence. Relying on established judicial practice, the Court held that when a trial is actively proceeding, it is generally inappropriate for superior courts to decide bail applications on merits, as this could prejudice the trial proceedings. Consequently, the Court dismissed the bail petition, leaving the matter to the discretion of the trial judge, thereby affirming the principle that bail is typically refused when a trial is underway to avoid premature assessment of evidence.
- Should a bail application be decided on its merits when the trial has already commenced?
- Does the commencement of a trial constitute a ground for refusing bail in cases of serious offences?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
ORDER
' MUHAMMAD NAWAZ BHATTI, J.--- The petitioner has sought his post-arrest bail in case F.I.R. No,333 of 2004 dated 18-9-2004 registered under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with section 377, P.P.C. At Police Station Kassowal, District Sahiwal.
2. Precisely the allegation against the petitioner as per prosecution story is that he along with other co-accused subjected Abdul Majeed aged 14 years to unnatural 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 unexplained delay of 28 hours in lodging the F.I.R.; 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 v. The State 1992 SCM R 600; Muhammad Anar v. The State 2004 M LD 144 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 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 v. Gul Akbar and another 1996 SCM R 931; Mian Dad v. The State 1992 SCM R 1418 and Allah Ditta and others v. 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 records 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 v.
Muhammad Rafique and another PLD 1989 SC 585 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.