MUHAMMAD AFZAL Versus THE STATE
This order disposes of a post-arrest bail application filed by the petitioner, who was initially nominated in an FIR for committing Zina-bil-Jabr under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and hurt offences under the Pakistan Penal Code 1860. The primary legal issue was whether the petitioner was entitled to bail where police investigation subsequently cleared him of the non-bailable offence of Zina-bil-Jabr, leaving only bailable hurt provisions under the Pakistan Penal Code 1860, alongside the existence of a cross-case where the complainant party was already on bail. The Lahore High Court observed that the investigation established no offence of Zina-bil-Jabr had occurred, that the petitioner had been challaned only under bailable hurt sections, and that a cross-case existed in which the opposing party had been granted bail. Holding that a fit case for bail was made out, the High Court accepted the petition and allowed bail subject to furnishing security.
- Whether an accused is entitled to bail when police investigation finds that the non-bailable offence alleged in the FIR was not committed?
- Whether the existence of a cross-case where the complainant party has been granted bail constitutes a valid ground for granting bail to the accused?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
As per F.I.R. on.the night between 17/18-6-2003 petitioner and his co-accused Shamshel while armed with sticks caught hold of Mst . Zohra Bibi (complainant's daughter) and petitioner committed Zina-bil-Jabr with her. Mst . Zohra Bibi raised alarm whereupon P.Ws reached the spot but petitioner and his co-accused caused injuries on the person of complainant and the P.Ws. The petitioner was arrested on 7-7-2003. Hence, this bail application.
2. I have heard the argument and perused the record.
3. Learned counsel for the petitioner submits that petitioner has been falsely implicated in this case. Further submits that actually complainant party is aggressor. He contended that during investigation it was found that no such occurrence took place and petitioner and his co-accused have been challened under sections 337- A( i ), 337-L(ii), 148/149, P.P.C. and that offence is bailable . He contended that in cross-case complainant party has been challaned and they are on bail, therefore, petitioner too deserves concession of bail.
4. On the other hand learned counsel for the complainant submits that actually petitioner and his co-accused are aggressors.
5. I have considered the submissions made by the learned counsel for the parties with care. As mentioned above as per F.I.R. on the night between 17/18-6-2003 petitioner and his co-accused caught hold of Mst . Zohra Bibi (complainant's daughter), committed zina with her and caused injuries on the person of complainant and P.Ws. Learned counsel for the State submits that during investigation it was found that none had committed Zina with Mst . Zohra Bibi and that petitioner and his co-accused have been challaned under sections 337- A( i ), 337-L(ii), 148/149, P.P.C. Further submits that complainant party has also been challaned in cross-case. The petitioner is in judicial lock-up since. 7-7-2003. As mentioned above during investigation it was found that none committed Zina-bil-Jabr with Mst . Zohra Bibi . The complainant party has also been challaned in cross-case and they are on bail. In these circumstances without going into merit of the case I find it a fit case for grant of bail to the petitioner. As such the application brought by petitioner is accepted and he is allowed bail (in case No. 181 of 2003 under section 10 Offence of Zina (Enforcement of Hudood ) Ordinance, 1979 and sections 337- A( i ), 337-L(ii), 147/148, P.P.C. registered at Police Station, Bhowana , District Jhang subject to furnishing security in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of trial Court.
H.B.T./M-250/L Bail granted.