RASOOL KHAN vs STATE
The petitioner sought post-arrest bail in case FIR No. 179/06 registered under Sections 12/7/79 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 377 of the Pakistan Penal Code 1860, relating to the abduction and commission of an unnatural offence. The core legal question was whether the petitioner, who was alleged to have been standing keeping watch while the co-accused committed the primary act, was entitled to post-arrest bail pending trial. The Lahore High Court held that according to the investigation and witness statements, the petitioner was not attributed the main offence of committing the unnatural act and his specific role required further inquiry. Consequently, the court allowed the petition and admitted the petitioner to post-arrest bail, establishing the principle that where an accused's complicity in a crime involving the prohibitory clause requires further inquiry and the trial is unlikely to conclude in the near future, bail ought not to be withheld.
- Whether an accused person alleged to have only stood guard while a co-accused committed an unnatural offence is entitled to post-arrest bail on the ground of further inquiry?
- Does the absence of a likelihood that the trial will conclude in the near future constitute a valid ground for granting post-arrest bail in cases falling within the prohibitory clause?
- Can bail be granted when the investigation attributes the main overt act to an absconding co-accused rather than the petitioner?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 7, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 79, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
Through this petition, the petitioner seeks post-arrest bail in case FIR No, 179/06 dated 16.6.2006 registered under Sections 12/7/79 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 377 PPC with Police Station Saddar Burewala District Vehari. According to the FIR, the petitioner alongwith the main accused Arif abducted to Mustansar Aftab son of the complainant by way of enticement and took him to barely field and committed unnatural offence; the complainant on coming into knowledge attracted to the spot alongwith the witnesses and saw the petitioner standing at the spot catching hold of shirt of the victim while Arif co-accused was subjecting him to unnatural offence; the petitioner and co-accused ran away.
2. It is argued by the learned counsel for the petitioner that according to the story of the FIR, the petitioner was standing at the spot but he was not committing unnatural offence at that time; according to the investigation, the petitioner was standing at "BANNA " and he was not committing unnatural offence; statedly the witnesses Shafique and Ehtisham before the police have stated in the same manner; admittedly the main accused is absconding; according to the result of investigation, the main offence is attributed against Arif co-accused, statedly the petitioner was arrested on 21.1.2007 but there is no likelihood of conclusion of the trial in near future. Learned Deputy Prosecutor General has opposed these grounds mainly on the ground that the offence falls within the prohibitory clause and that the petitioner has allegedly subjected the victim to unnatural offence.
3. Heard. According to the result of the investigation, the petitioner was standing at "BANNA" for the watching purposes; the co-accused is absconding; the challan is not complete. According to the prosecution witnesses recorded by the police under Section 161 Cr.P.C., as alleged, the petitioner has not taken his turn and has not committed unnatural offence. In my view it is a matter of further enquiry and the prosecution may prove its case in the witness-box to the extent of the petitioner, if he has also committed the offence alongwith the main accused or not as he is not the main accused. There is no likelihood of conclusion of the trial in near future and concession of bail cannot be A withheld in the circumstances. Therefore, the petitioner is admitted to post arrest bail subject to his furnishing the bail bonds in the sum of Rs, 50,000/- with one surety in the like amount to the satisfaction of the trial Court. This petition is accordingly allowed.