MUHAMMAD AZIM Versus THE STATE

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from order dated 27‑7‑1987 of the Lahore High Court; whereby petitioner's application for bail in a case under Sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (No.VII of 1979), was dismissed.

2. There are several accused in this case. The allegation against the petitioner is that one Sher Din, petitioner's co‑accused, having deceitfully abducted Mst. Yasmin Jana, a teenage girl of tender age, raped her. She was taken from place to place and was also handed over to Muhammad Azim petitioner who allegedly participated in the crime of abduction and also raped the prosecutrix.

3. The learned Judge in the High Court took note of the facts in the case and refused request for bail to the petitioner.

4. After hearing the learned counsel in support of this petition, we are unable to agree with the submission that the learned Judge did not apply mind to all the facts and circumstances of the case. He also contended that Sher Din, who according to the allegations does not appear to have committed any lesser offence was allowed bail by the same learned Judge in an earlier order. After hearing him in this behalf we have come to the conclusion that the mere fact that a A person who has been allowed bail in the same case (who in our view) should not have been allowed bail, does not justify grant of bail to a person who is otherwise not entitled to it. The argument based on the so‑called principle of consistency is repelled.

5. This petition, therefore, is dismissed.

6. Before parting with this order it is necessary to record our observations made with regard to the bail granted to Sher Din by the High Court: As already stated, it might not be possible to distinguish the case of Muhammad Azim petitioner and Sher Din in so B far as the nature of offence for purposes of bail proceedings is concerned. One reason being that the prosecutrix when recovered after some time since her abduction during which she was allegedly subjected to cruel acts, made serious allegations against Sher Din. He, it is possible in view of the allegations made against him, might be a hardened and desperate criminal. The learned Judge in the High Court however, granted bail to Sher Din on ground of delay in the submission of the challan. It is a moot point whether Sher Din was such a person to whom bail should have been allowed the circumstances of this case on the ground of delay in the submission of the challan only. There being no appeal before us against Sher Din, we leave the question for re‑examination of the grant of tail by the High Court to him (under subsection (5) of section 497, Cr.P.C.). A copy of this judgment shall be submitted to the learned Chief Justice of the Lahore High Court.

7. With these observations this petition is dismissed.

8. M . B . A . / M‑247 / S Petition dismissed.