MUHAMMAD SARFRAZ alias RIAZ vs STATE
This matter involves a petition for pre-arrest bail filed by Muhammad Sarfraz alias Riaz in connection with F.I.R. No. 121 of 2006 registered under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question concerns whether the petitioner has made out a case for the grant of pre-arrest bail for a heinous crime falling within the prohibitory clause, despite being nominated in the F.I.R., supported by witness statements, and having a previous conviction for a similar offence. The Lahore High Court dismissed the petition, holding that the petitioner is prima facie involved in the crime, failed to establish mala fide on the part of the prosecution, and does not deserve the discretionary relief of pre-arrest bail. The key principle laid down is that pre-arrest bail will be denied in heinous offences falling within the prohibitory clause where the accused is nominated with specific roles, supported by corroborative material, and lacks proof of prosecution mala fide.
- Whether pre-arrest bail can be granted to an accused who is nominated in the F.I.R. for an offence falling within the prohibitory clause?
- Does a previous conviction for a similar offence disentitle an accused from claiming pre-arrest bail?
- Whether the withdrawal of an application before an ex officio Justice of Peace affects the validity of a subsequently registered F.I.R.?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
- Section 22-A, Code of Criminal Procedure 1898
ORDER
On the last date of hearing i.e. 29-6-2006, the learned counsel for the petitioner addressed his arguments in support of his petition for pre-arrest bail and the petition was adjourned for today i.e. 3-7-2006 for the arguments of the learned counsel for the State and the complainant. However, today, the petitioner has not entered appearance. Nevertheless this petition for pre-arrest bail is being disposed of on merits.
2. The petitioner, Muhammad Sarfraz alias Riaz seeks pre-arrest bail in case bearing F.I.R. No. 121 of 2006 dated 17-3-2006, under Section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979, registered at Police Station Saddar, Arifwala, District Pakpattan Shard.
3. Learned counsel for the petitioner had submitted that the petitioner was innocent; that no such occurrence had ever taken place, that the father of the alleged victim had earlier made an application, in which similar allegations were levelled against the present petitioner but those allegations were found to be untrue and he withdrew the application and that the respectables of the locality had sworn affidavits to the effect that no such occurrence had taken place.
4. Learned State Counsel assisted by the learned counsel for the complainant vehemently opposed the bail petition and submitted that the complainant had moved an application before the learned ex officio Justice of Peace/Additional Sessions Judge, for the registration of case, which was withdrawn as he was assured that the case would be registered against the present petitioner; that the petitioner is duly nominated in the F.I.R.; that specific role had been attributed to him and that previously also a case of similar offence had been registered against him.
5. Arguments heard. Record perused.
6. The petitioner is duly nominated in the F.I.R. The allegation against him is that he alongwith his co-accused Yasin committed Zina-bil-Jabr with Mst. Gulzaran Bibi, the victim, who was medically examined and the medical report duly shows that she was subjected to Zina. In 1998, case bearing F.I.R. No. 949 of 199', under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 was registered at Police Station Saddar Arifwala, District Pakpattan, against the present petitioner in which he was convicted. The petitioner is alleged to have committed same offence again, which is a heinous crime. Statements under Section 161, Cr.P.C. of Muhammad Rafiq son of Rustam Ali and Shakeel son of Abdul Majid have been recorded and they have supported the prosecution version. The contention of the learned counsel for the petitioner that the complainant had earlier withdrawn his application for registration of case is misconceived. In fact the complainant had moved an application under Section 22-A., Cr.P.C. before the learned ex officio Justice of Peace/Additional Sessions Judge, Arifwala, District Pakpattan, for the registration of case.
However, when he was informed that the case was being registered, then he withdrew his application and consequently F.I.R. was registered against the present petitioner on 17-3-2006.
Prima facie, the petitioner appears to be involved in this case and mala fide on the part of prose' ition has not been established by him. Grounds for grant of pre-arrest bail are different to that of after arrest. The offence falls within the prohibitory clause. No case for pre-arrest bail has been made out by the petitioners, who does not deserve any discretionary relief from this Court.
7. In view of what has been discussed above, this petition in dismissed.