BASHIR AHMAD vs STATE
This petition for post-arrest bail arises from a criminal case registered under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and Section 322 of the Pakistan Penal Code 1860. The petitioner was accused of enticing the complainant's wife and children to leave their home, leading to the drowning of several family members while attempting to cross a river. The core legal question was whether the petitioner was entitled to bail given the conflicting evidence and the police investigation findings. The Court observed that during the investigation, the police declared the petitioner innocent, noting that the deaths resulted from the heavy water pressure in the river rather than the petitioner's actions. Furthermore, close relatives of the deceased and the husband of one of the victims provided affidavits exonerating the petitioner. The Court held that the case warranted further inquiry, as the prosecution's allegations were not supported by the investigation or the statements of key witnesses. Consequently, the Court granted post-arrest bail, establishing that where police investigation and witness statements contradict the FIR, a case for further inquiry is made out.
- Does a police investigation report declaring an accused innocent constitute sufficient grounds for a court to grant post-arrest bail?
- Can a bail petition be granted when the primary allegations in the FIR are contradicted by the statements of the victims' close relatives?
- Is a case considered one of 'further inquiry' when the prosecution's evidence is undermined by the findings of the investigating officer?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 322, Pakistan Penal Code 1860
- Section 496-A, Pakistan Penal Code 1860
ORDER
Through this petition, Bashir Ahmad, petitioner seeks post-arrest bail in case FIR No, 92/2004, dated 14.8.2004, registered under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, No, VII of 1979 read with Section 322 PPC, at Police Station Takhat Mehal, District Bahawalnagar.
2. Allegation against the petitioner, as per contends of the FIR, is that he being a nephew of the complainant's wife used to visit house of the complainant and had developed illicit relations with his daughters namely Mst. Zulaikhan and Mst. Naziran and on his forbidding the petitioner from visiting his house, his relations became strained with his wife Mst. Nooran and taking advantage of which situation on 13.8.2004, at 10.00 p.m., the petitioner, allegedly enticingly took complainant's wife Mst. Nooran Bibi, daughters Nazeeran, Sumera, Umera, son, Ahmad Raza and maternal grand- daughter Saima with him towards River Satluj but while trying to cross it, without a boat, due to heavy pressure of water, except the petitioner and Mst. Nooran all other above named were drowned and their dead bodies were found consecutively later on.
3. It is contended by learned counsel for the petitioner that the petitioner has been implicated by the complainant malafidely with the connivance of local police due to his suspicion that he had developed illicit relations with his daughter Mst. Zulaikhan Bibi. He has added that neither did he enticed away anyone nor he established illicit relations with Mst. Zulaikhan. Further added that close relatives of the complainant's wife had also submitted their affidavits, before the police, deposing that after 'having quarreled with the complainant Mst. Nooran alongwith her drowned children and grand-daughter left for her mother's house situated at Ludan. The learned counsel has argued that as per contends of the FIR that alleged offence was not made out during the course of investigation therefore, Section 496-A PPC was deleted and the petitioner/Bashir Ahmad was declared innocent by the police concerned. But due to obstinacy of the complainant and not coming to join the investigation, the I.O. placed the petitioner in Column No 2 and sent him to judicial lockup. Therefore, the petitioner being no more required by the police for the investigation purposes is entitled to grant of post-arrest bail.
4. Learned DPG assisted by learned counsel for the complainant has opposed this .bail petition contending that the petitioner is nominated in the FIR ascribed with specific role of enticing the complainant's mother and causing death of complainant's son and daughters.
5. Heard. Record perused.
6. The petitioner being a real nephew of complainant's wife used to visit complainant's house and on coming to know that the petitioner had developed illicit relations with Mst. Zulaikhan, daughter of the complainant, on his forbidden to the petitioner from coming his home, his relations became strained with his wife due to which the petitioner allegedly was able to entice Mst. Nooran and others to leave house of the complainant enabling him to get Mst. Zulaikhan divorced from Abdul Sattar (her husband) and then himself marry her. But during the investigation the statement made before the policy by Mst. Nooran Bibi/wife of the complainant reveals that the petitioner wanted to marry Mst. Zulaikhan and for this purpose she alongwith her daughters was, prima facie, ready to accompany the petitioner. During the investigation Abdul Sattar, husband and father of Mst.
Zulaikhan and Saima/deceased respectively disclosed that neither the petitioner had illicit relations with his wife nor due to him (petitioner) his wife and daughter or others died rather the cause of their death was heavy pressure of water in the river. Similarly, Karam Illahi and Sheikh Muhammad, real brothers of complainant's wife, Munawar Ali and others close relatives of complainant's wife as well as of the petitioner, corroborative each other saying that the petitioner was not the cause for death of complainant's daughters, son and grand-daughter but it was due to heavy pressure of water in the river. In this regard they sworn and submitted their affidavits during the investigation of the case. But the complainant did not come forward during investigation to get record his statement and remained obstinate to his stance taken in the FIR.
However, during the investigation, the petitioner was declared innocent by the police and the challan submitted to the Court. Summing up the above discussion and keeping in view the non- joining of the complainant, the police investigation as well as the statement of Abdul Sattar, husband of Mst. Zulaikhan and father of Saima/deceased and other close relatives, this Court acceding it to be a fit case for one of further inquiry allows this petition and admits the petitioner to post-arrest bail subject to this furnishing bail bonds in the sum of Rs, 100,000/- with one surety in the like amount to the satisfaction of the learned trial Court.