This petition challenged a Peshawar High Court judgment that declined post-arrest bail to the petitioner, Hidayat Khan, in a case registered under sections 5/10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question was whether the petitioner was entitled to bail, considering the evidentiary weaknesses and his long abscondence. The Supreme Court observed that the FIR was silent on the source of information regarding the petitioner's involvement, and subsequent witness statements recorded under Section 161 Cr.P.C. also failed to disclose their sources. The alleged co-accused had not been arrested. These circumstances brought the case within the ambit of further inquiry under Section 497(2) Cr.P.C. The Court held that mere long abscondence, while a factor, is not sufficient to withhold the concession of bail when the accused is otherwise entitled to it. Consequently, the petition was converted into an appeal, allowed, and post-arrest bail was granted to Hidayat Khan.
SARDAR TARIQ MASOOD, J.---Througli this petition, petitioner Hidayat Khan impugns the judgment dated 16.05.2019 passed by Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat through which his post arrest bail was declined in case FIR No. 104 dated 28.03.1986 registered under sections 5/10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Timergara, District Dir Lower.
2. After hearing the learned counsel for the petitioner as well as the learned law officer and perusal of the record, we observe that although in the FIR the complainant claimed that his wife on her own eloped with the petitioner but his information to that extent is based upon the information passed to him by someone and the FIR is silent regarding the source through which the complainant came to know about the involvement of the petitioner in this case. Subsequently, two PWs namely Samin Khan and Sadabbar were examined by the police under section 161, Cr.P.C. that too after eight and four days respectively of the registration of the FIR who also claimed that they came to know about the involvement of the petitioner but did not disclose the said source. The alleged wife of the complainant has not been arrested so far. These circumstances clearly bring the case of the petitioner within the ambit of further inquiry under subsection (2) of section 497, Cr.P.C. The High Court has mainly refused the bail of the petitioner on the ground of his long abscondence but mere abscondence by itself is not sufficient to with hold the concession of bail when he otherwise became entitled for the grant of bail. Consequently, this petition is converted Into an appeal and the same is allowed. Appellant Hidayat Khan is granted post-arrest bail in the instant case subject to his furnishing bail bond in the sum of Rs.200,000/- (Rupees Two Lakh only) with one surety in the like amount to the satisfaction of the learned trial court concerned.