NAEEM RIAZ and another vs THE STATE
This criminal miscellaneous petition is filed by the petitioners seeking post-arrest bail in case F.I.R. No. 152 of 2007 registered under Section 365-B of the Pakistan Penal Code 1860 at Police Station Saddar Jalalpur Jattan, District Gujrat, for the alleged abduction of the complainant's daughter for the purpose of committing Zina. The core legal question is whether the petitioners are entitled to post-arrest bail in the absence of direct evidence, when eye-witnesses have sworn affidavits denying the occurrence, and when the police have declared the accused innocent during investigation. The Lahore High Court accepted the petition and held that the case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, given the affidavits of eye-witnesses, the police finding of innocence, and the delay in lodging the F.I.R. The key legal principle laid down is that where ocular testimony is disputed by affidavits of cited eye-witnesses and the accused are found innocent during police investigation, further inquiry is warranted, justifying the grant of post-arrest bail.
- Whether delay in lodging the F.I.R. without adequate explanation creates further doubt about the veracity of the prosecution case for the purpose of bail?
- Does the declaration of innocence by the police during investigation make the case one of further inquiry under criminal law?
- Are petitioners entitled to post-arrest bail when cited eye-witnesses swear affidavits stating they did not witness the occurrence?
- Section 365-B, Pakistan Penal Code 1860
ORDER
' TARIQ SHAMIM, J.---Through this petiiion, the petitioners seek post-arrest bail in case F.I.R. No. 152 of 2007, dated 12-4-2007 for offence under section 365-B, P.P.C., registered at Police Station Saddar Jalalpur Jattan, District Gujrat.
2. Briefly stated the facts of the case are that Mst. Fakhiran, daughter of the complainant, was abducted by the petitioners for the purpose of committing Zina.
3. The learned counsel for the petitioners contends that there is delay of two days in lodging of the F.I.R. That the complainant was not an eye-witness of occurrence; that two eye-witnesses cited in the F.I.R. Had sworn in affidavits to the effect that they had not witnessed the occurrence; that during investigation the petitioners were declared innocent by the police; that no role has been ascribed to petitioner No.2 in the F.I.R. And that the petitioners are behind the bars for the last more than seven months who are, therefore, entitled to be released on bail.
4. The learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the petition.
5. I have heard the learned counsel for the parties and gone through the record.
6. The contents of the F.I.R. Reveal that the complainant himself had not witnessed the petitioners and others abducing Mst. Fakhiran Bibi, his daughter. Two eye-witnesses cited in the F.I.R. Have sworn in affidavits to the effect that they had not witnessed the occurrence as alleged by the prosecution, therefore, the case of the petitioners is one of further inquiry calling for further probe into their guilt. Needless to mention that at present there is no direct evidence available on the record regarding complicity of the petitioners in the crime. During investigation, the police has declared the petitioners innocent. Further doubt about the veracity of the prosecution case is created by delay of two days in lodging of the F.I.R. Which has also not been adequately A explained by the complainant. The petitioners are behind the bars for the last more than seven months and since investigation has been finalized, therefore, keeping them in continued custody would not serve any useful purpose.
' For what has been stated above, this petition is accepted and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. In case the alleged abductee is recovered and she makes statement against the petitioners about their complicity in the offence, the complainant shall be well within his right to approach this Court seeking cancellation of bail of the petitioners.
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