MUHAMMAD ANWAR Versus THE STATE
This matter concerns a post-arrest bail application filed by the petitioner, who was charged under Section 10(2) and (3) of the Offence of Zina (Enforcement of Hadood) Ordinance 1979, following an allegation of committing zina. The core legal question was whether the petitioner was entitled to bail given the prosecution's allegations and the specific circumstances of the case, including the delay in lodging the First Information Report and the credibility of the complainant. The Court held that the petitioner was entitled to bail. The ratio of the decision rests on the tentative assessment of the facts, noting that the two-day delay in reporting the crime, the complainant's lack of standing as the husband of the victim, and the implausibility of the prosecution's narrative—specifically regarding the husband sleeping nearby without hearing the alleged incident—raised significant doubts. Relying on the principle established in Falak Sher v. The State, the Court determined that where the prosecution story leaves much to be inquired into, bail should be granted to the accused pending trial.
- Does a two-day delay in lodging an FIR, combined with doubts regarding the prosecution's narrative, constitute sufficient grounds for the grant of post-arrest bail?
- Is bail appropriate when the prosecution's story leaves significant facts to be inquired into during the trial?
- Can bail be granted in an offence falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 if the prosecution's case is tentative and questionable?
- Section 10(2), Offence of Zina (Enforcement of Hadood) Ordinance 1979
- Section 10(3), Offence of Zina (Enforcement of Hadood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
The petitioner is involved in case F.I.R. No. 388 of 1998, dated 2‑8‑1998 under section 10(2)(3) of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 registered at Police Station Dera Rahim, District Sahiwal on the statement of Muhammad Yasin that the petitioner and Mst. Irshad Bibi were found committing zina which was witnessed by the complainant and Shahid son of Jalal Din, Mashkoor son of Ishfaq, Muhammad Yaqoob son of Ibrahim and Muhammad Amin. The petitioner ran away from the spot.
2. Earlier, the bail application of the petitioner was rejected by the learned Additional Sessions Judge vide order, dated 16‑9‑1998.
3. Learned counsel for the petitioner submits that the petitioner is innocent and has been falsely involved by the complainant in collusion with the local police only to conceal his own crime and that there is two days in lodging the F.I.R. and that the story of the prosecution is not plausible as the cots of Mst. Irshad Bibi, her husband and the petitioner were in the court‑yard while the complainant is residing in a separate house and he heard the noise of the cot whereas the husband of Irshad Bibi who was sleeping on the adjoining charpai did not hear any noise and that in fact the complainant committed zina with Irshad Bibi and that in the presence of husband of Irshad Bibi, the complainant has no right to become the complainant and that the prosecution witnesses are interested.
4. On the other hand, learned counsel for the State has opposed the petition on the ground that the petitioner is specifically named in the F.I.R. with specific role and that the offence falls within the prohibitory clause of section 497, Cr.P.C.
5. I have given due consideration to the valuable arguments on both the sides and have gone through the record.
6. The tentative assessment of the facts that there is delay of two days in lodging the F.I.R. and that the complainant is not the husband of the victim and that the offence has been committed by the petitioner while the, husband of Irshad Bibi was sleeping on the adjoining charpai and the noise was heard by the complainant and the medical report of the victim who is a married woman leaves much to be inquired into and in the case of Falak Sher v. The State (1979 SCMR 103) when the prosecution story left much to be inquired into, their lordships of the Hon'ble Supreme Court granted bail to the accused, as such, the petition is allowed and the petitioner is directed to be released on bail provided he B furnishes bail bond in the sum of Rs. 25,000 with one surety in the like amount to the satisfaction of the trial Court/Illaqa (Judicial) Magistrate. Copy dasti.
N.H.Q./M‑1095/L
Bail allowed.