KHALID RASHID @ ABDUL KHALIQ vs STATE and another
This matter arises from a petition for post-arrest bail filed by Khalid Rashid alias Abdul Khaliq, who was implicated in case FIR No. 274 of 2004 registered under Section 12 of the Offence of Zina (Enforcement of Hadd) Ordinance 1979 and Section 377 of the Pakistan Penal Code 1860 for sodomy. The core legal question is whether the petitioner is entitled to post-arrest bail when he was initially found innocent during investigation, regularly attended trial proceedings, but missed a single hearing due to sudden illness resulting in the cancellation of his bail and issuance of warrants. The Lahore High Court held that the petitioner's absence was due to circumstances beyond his control and that his case called for further inquiry into his guilt. The court laid down the principle that when an accused is found innocent during police investigation, regularly attends trial, and misses a single appearance due to sudden illness supported by medical circumstances, the case warrants the grant of post-arrest bail under the principle of further inquiry.
- Whether an accused found innocent during police investigation is entitled to post-arrest bail when his absence from trial was due to sudden illness?
- Does failure to appear before the trial court on a single date due to illness justify the withdrawal of bail and refusal of exemption?
- When does a criminal case fall within the scope of further inquiry warranting the grant of bail?
- Section 12, Offence of Zina (Enforcement of Hadd) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
ORDER
The petitioner, Khalid Rashid alias Abdul Khaliq son of Abdul Rasheed, seeks his release on bail in case FIR No, 274/2004, dated 10.6.2004, offence under Section 12 Offence of Zina (Enforcement of Hadd) Ordinance (Ordinance VII) of 1979 read with Section 377 PPC, registered at Police Station, Jahanian, District Khanewal.
2. Precisely stated the facts of the case are the petitioner has been involved in the aforesaid case with the allegation that the petitioner along with two others have committed sodomy with the complainant. Accordingly the aforesaid FIR was registered.
3. Learned counsel for the petitioner submits that during the course of investigation the petitioner was found innocent and a discharge report was accordingly prepared by the I.O. However, the same, did not find favour with the learned Magistrate and consequently the petitioner was summoned by the learned trial Court and the petitioner submitted his bail bonds there. He states that the petitioner continued appearing for facing the trial before the learned trial Court but unfortunately he became ill on 12.3.2009 and had to be admitted in the Civil Hospital, Jahanian, and could not appear before the Court, hence concession of bail was withdrawn. On 13.3.2009 the petitioner's counsel moved an application for exemption of his appearance in the Court, which request was declined by the learned trial Judge and consequently his non-bailable warrants of arrest were issued. The petitioner moved for pre-arrest bail, which was dismissed in limine by the learned Addl. Sessions Judge, Khanewal and the petitioner was arrested. Learned counsel for the petitioner adds that the petitioner was found to be innocent during the course of investigation and was not challaned, as such his absence before the learned trial Court was neither intentional nor contumacious rather the same was because of the circumstances beyond his control. He adds that the petitioner remained appearing before the learned trial Court before complained absence and requested for his release on bail.
4. On the other hand, learned Deputy Prosecutor General has opposed the bail application on the ground that the petitioner is named in the FIR and the offence with which the petitioner has been charge falls within the prohibitory clause. He has further submitted that no mala fide exists on the part of the prosecution to falsely implicate the petitioner in this case, hence he is not entitled to the concession of bail.
5. After hearing the leaned counsel for the parties and perusing the record it is observed that the petitioner was found innocent during the course of investigation and he was not challaned. He was summoned by the learned trial Court and he has furnished the requisite bail bonds. He continued appearing before the learned trial Judge and it was on account of his illness that he could not appear before the Court, hence concession of bail granted to him was withdrawn. Keeping in view what has been discussed above, the petitioner's case requires further inquiry into his guilt.
Accordingly instant bail application is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds to the tune of Rs,100,000/- (Rupees One Hundred Thousand only) or in the like amount with one surety to the satisfaction of the learned trial Court.