FAISAL AHMED alias MASOOD vs THE STATE
This matter concerns a petition for post-arrest bail filed by the petitioner, Faisal Ahmed, who was charged under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, read with Sections 114 and 338 of the Pakistan Penal Code 1860, regarding an alleged incident of Zina. The core legal question was whether, given the significant delay in lodging the First Information Report (F.I.R.) and the lack of corroborative evidence, the petitioner was entitled to bail pending trial. The Court observed that the F.I.R. was lodged with an inordinate delay of five months, and the prosecution record lacked medical evidence or chemical examiner reports to corroborate the victim's statement. Noting that co-accused had already been granted bail, the Court held that the case against the petitioner required further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the Court admitted the petitioner to bail, emphasizing that an accused cannot be retained in custody as a measure of punishment when the case warrants further investigation.
- Does an inordinate delay in lodging an F.I.R. without explanation constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can an accused be denied bail when the prosecution case rests solely on the victim's statement without corroborative medical or chemical evidence?
- Is the principle that an accused cannot be kept in custody as a measure of punishment applicable when a case requires further inquiry?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 114, Pakistan Penal Code 1860
- Section 338, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J---The petitioner Faisal Ahmad (Masood) son of Nazir Ahmad seeks his post-arrest bail in case F.I.R. No.474, dated 5-9-2003 registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 114 and 338, P.P.C. At Police Station Kuthiala Sheikhan District Mandi Baha-ud-Din.
2. The prosecution story as unfolded in the F.I.R. Recorded at the instance of Bashir Ahmad son of Maula Dad was that he was running a store in the village; that on 5-9-2003 i.e. The day of occurrence on which date the instant F.I.R. Had been recorded his grand paternal daughter Farzana informed him that about five months ago around 9-00 a.m. When she was present in the house, Ms,. Shahida wife of Muhammad Nawaz came to her house and told her that since she came under the spell of some evil spirit occasionally, therefore, she could get her treated and would also get her an amulet; that Farzana accompanied Mst. Shahida and reached the house of Faisal, the present petitioner, where they were made to sit in a Baithak; that Faisal petitioner and Muhammad Nawaz co-accused arrived there whereafter Muhammad Nawaz and his wife Mst.
Shahida went out in the street; that Faisal petitioner forcibly subjected her to Zina then he left the room after having said that this was the treatment which had been administered to her.
Accordingly the instant case was registered.
3. The petitioner was arrested on 7-10-2003 and is in custody ever since. He applied for his post- arrest bail which was not granted to him and his application was turned down by the learned Additional Sessions Judge, Mandi Bahaud Din vide his order, dated 30-3-2004. Hence this petition.
4. Mr. Nazir Ahmad, Advocate in support of the petitioner's plea for bail has argued that a plain look at the F.I.R. Would show that the story as narrated by the victim is quite improbable, unnatural and does not appeal to reason at all; that five months' inordinate delay in lodging the F.I.R. Has not been properly explained; that there is no worthwhile material available against the petitioner; that apart from the bald statement of the victim herself there is no corroboratory material in the shape of medical evidence or report of the Chemical Examiner on the record. He finally argued that the co- accused of the petitioner, namely, Muhammad Nawaz has been allowed bail by this Court in Criminal Miscellaneous No.7870-B of 2003 whereas Mst. Shahida co-accused had been extended such concession by the learned trial Court.
5. On the other hand Malik Muhammad Aslam, the learned counsel for the State has opposed the grant of bail albeit halfheartedly. He after examining the record frankly submitted that apart from the statement of the victim there was no other material available against the present petitioner.
6. I have considered the arguments of the learned counsel for the parties and have noticed that in view of the delay in lodging the F.I.R. And the fact that at present apart from the statement of the victim there is no other confirmatory material available with the prosecution the case of the petitioner is one of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. The petitioner is in custody for the last more than seven months and the trial has yet not concluded. He cannot be retained in custody as a measure of punishment.
7. Accordingly this petition is allowed and the petitioner is admitted to bail in the sum of Rs.20,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.
' The observations made herein are tentative in nature and shall not affect the course of the trial in any manner.