BASHARAT MASIH vs THE STATE
This bail application concerns an accused, Basharat Masih, charged under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for the alleged kidnapping of the complainant's wife. The core legal question was whether the applicant was entitled to post-arrest bail given the delay in lodging the FIR, the victim's affidavit claiming conversion to Islam and intent to marry the applicant, and the prolonged incarceration of the accused without trial progress. The Court held that the unexplained eleven-day delay in the FIR and the victim's affidavit rendered the case one of further inquiry. Furthermore, noting that the accused had been incarcerated for four years without a single witness being examined, the Court emphasized that an accused cannot be kept in custody as a form of punishment. Consequently, the Court granted bail, establishing the principle that prolonged pre-trial detention without trial progress, combined with evidentiary inconsistencies, warrants the concession of bail, even in cases falling under the prohibitory clause.
- Does an unexplained delay in lodging an FIR constitute grounds for further inquiry in a bail application?
- Can an accused be denied bail solely because the offense falls under the prohibitory clause when there has been no progress in the trial for four years?
- Is an affidavit by an alleged abductee claiming consent sufficient to make a case one of further inquiry for the purpose of bail?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' ZIA PERWEZ, J.---Through this application applicant seeks bail in the offence under section 16 Zina Hudood Ordinance registered at P.S. Sharafi Goth under F.I.R. No,88/2005.
2. ' Brief facts of the case are that the complainant lodged F.I.R alleging therein that one Basharat Masih, used to come to his home and talked to his wife. On 27-6-2003 at 10-30 in the night when he came to his home he found that his wife, who was alone in the house, was not available. He searched a lot but in vain but came to know that his wife has been kidnapped by Basharat son of Boota, present applicant, with the help of his two brothers Shahbaz, Shahzad and brother law Javaid.
3. ' Contention of learned counsel for the applicant is that there is delay in lodging the that the co- accused have been granted bail in the crime and as a rule of consistency the present applicant is also entitled to the concession of bail. That the applicant is behind the bars since 9-9-2003. That the victim has sworn her affidavit stating therein that she has accepted religion Islam and wanted to marry with the applicant and hence question of kidnapping does not arise. In support of his contention he has placed reliance on the case of Tariq Masih v. The State (2004 PCr.LJ 622).
4. ' On the other hand learned State counsel opposed the grant of bail to the applicant on the ground that the offence fall under the prohibitory clause of section 497. Cr. P.C. The applicant is main culprit behind the heinous crime. As regards statement of abductee/victim he contended that the 'she cannot remarry unless divorced by her previous husband under the Chhstian law, which has not been done so far.
5. ' I have heard the learned counsel and perused the material available on record. There is delay of about 11 days in lodging the F.I.R which goes unexplained. The affidavit sworn by the abductee/victim also makes the case a case of further inquiry. Applicant is behind the bars for the last four years and not single witness has been examined so far, as admitted by the learned State counsel diaries up to 31-1-2005 available in earlier bail application No,1096/2004 also confirm the same. It is settled principle of law that the accused cannot be kept behind the bars as all punishment. Under the. Circumstances, I admit the applicant to bail subject to his furnishing surety in the sum of Rs,1,00,000 (One Lac) with P.R. Bond in the like amount to the satisfaction of learned trial Court.