JAHANGIR Versus STATE

ORDER

1. Applicant/accused is booked for offences under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 363, P.P.C. This bail application is being pressed solely on the ground of statutory delay.

2. I have heard Mr. M. Rafi Shafqat, Advocate, for the applicant and Mr. Sharafat Ali Khan, Advocate, for the State. I have also perused police papers. Mr. M. Rafi Shafqat has filed certified copies of the diary sheets of the trial Court covering the period from 28th July, 1997 till 8th December, 1998, and contended that despite passing of nearly 18 months, the case has not yet commenced. It was argued that under such circumstances, present applicant is entitled to bail.

3. Mr, Sharafat Ali Khan, learned counsel of the State has opposed this bail application on the grounds that the maximum punishment provided for the alleged offence is death and that from the material so far collected by the prosecution the present applicant appears to be desperate and hardened criminal. He has referred to the statements of the abductee Mst. Mehvish recorded under sections 161, Cr. P. C. and 164, Cr.P.C. In both these statements, she has alleged offence of Zina‑bil‑Jabr against the present applicant as well as against absconding accused Rasheed. This fact is controverted by Mr. Rafi Shafqat, who states that prosecutrix (abductee) is lawfully wedded wife of the present applicant. In so far as the age of abductee is concerned, in the F.I.R. it is alleged that she was nine years old, while according to medical certificate of the doctor, who examined the abductee, she is in between 12 to 13 years. On the other hand, it is claimed by the applicant that she is 16 years old. In such circumstances, I am inclined to accept the age of abductee as suggested by the medical experts for this bail purpose.

4. In the year 1997, through Act VI of 1997 subsection (4) was introduced and added to section 10 of the aforesaid Offence of Zina (Enforcement of Hudood) Act, 1979, which reads as follows:

5. "(4) When Zina‑bil‑Jabr liable to Ta'zir is committed by two or more persons in furtherance of common intention of all, each of such person shall be punished with death." (see PLD 1997 Cent. St. 367)

6. After considering the arguments of both the learned counsel, I am of the tentative view that keeping in view the evidence of the prosecutrix/abductee, in which she has alleged offence of Zina‑bil‑Jabr against the two co‑accused (including the present, applicant) for which the maximum punishment now provided is death, it will be the period of two years, after which the applicant could invoke the ground of the delay in the trial for grant of bail. Provisions of IIIrd proviso to section 497, Cr.P.C would be available after expiry of a period of 24 months in the aforesaid circumstances. In this view of the matter, I am not inclined to grant this bail application which is accordingly dismissed. I would also like to express my reservations that the offence of Zina‑bil‑Jabr committed in a manner as alleged in this case may bring an accused/applicant within the definition of dangerous and desperate criminal and even if a period of 24 months has lapsed, the doubt prevails whether applicant would be still entitled to bail or not.

7. As a result of the above discussion this bail application is dismissed. Trial Court is directed to expeditiously proceed with the case and to frame charge and to record evidence of the complainant within a period of two months from the date of receipt of this order. Any observation made hereinabove is tentative and in no manner will influence the trial Court.

8. N.H.Q./J‑40/K

9. Bail refused.