Sajid Ali Versus State
This bail application was filed by the applicant seeking post-arrest bail in a case registered under Sections 376, 335, and 342 of the Pakistan Penal Code 1860. The prosecution alleged that the applicant committed zina with his ex-wife after divorcing her. The applicant contended that he had not divorced his wife, that he had previously lodged an FIR against her and another individual for entering into a second marriage during the subsistence of their marriage, and that he was falsely implicated. The High Court of Sindh observed that while there were allegations of zina after divorce, no medical certificate was available on record to support the claim. The Court emphasized that at the bail stage, only a tentative assessment of the record is permissible, and deeper appreciation of evidence is barred. Finding that the applicant was in jail, no longer required for investigation, and that continuous detention would not serve as a strategy for punishment, the Court held that the case fell within the ambit of further inquiry. Consequently, the post-arrest bail was granted.
- Whether post-arrest bail can be granted in a case of alleged zina where no medical certificate is available on record to support the accusation?
- Can continuous detention of an accused in jail be used as a strategy for punishment during the pendency of trial?
- What is the scope of assessment of evidence by a court at the stage of deciding a bail application?
- Section 376, Pakistan Penal Code 1860
- Section 335, Pakistan Penal Code 1860
- Section 342, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
order
Amjad Ali Sahito, J .--- Through this Bail Application, applicant/accused seeks post-arrest bail in Crime No.83/2025 for the offence under Sections 376/335/342 P.P.C. registered at PS Awami Colony, after his bail plea has been declined by the learned VII-Addl. Sessions Judge, Karachi East vide order dated 15.02.2025.
2. The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.
3. Per learned counsel for the applicant, applicant is innocent and has falsely been implicated in this case; that the applicant has not divorced his wife Mst. Kiran, as such, allegation for committing zina against him is baseless; that prior to this FIR, the applicant also, lodged an FIR against Mst. Kiran and one Arsalan for committing Nikah over Nikah; that the applicant has not committed any offence; that the applicant is in jail and he is no more required for further investigation. Lastly, he prays for grant of bail.
4. On the other hand, learned counsel for the complainant as well as learned Addl. P.G. vehemently opposed for grant of bail.
5. Heard and perused.
6. Admittedly, Mst. Kiran was previously wife of the present applicant and claim of the victim/Mst. Kiran is that the applicant has divorced her and subsequently, she has remarried with one Arsalan and thereafter, the present applicant has committed zina with her. Whereas, learned counsel for the applicant stated that prior to this, applicant also lodged an FIR against Mst. Kiran and Arsalan for committing Nikah over Nikah and the applicant has not committed any offence. Although there is allegation against the applicant that after divorce his wife, he has committed zina with his ex-wife/Mst. Kiran but no medical certificate is available on record to believe the same. All these aspects of the case shall be decided by the trial Court when evidence will be recorded. At bail stage, only tentative assessment is to be made and deeper appreciation is not permissible. The applicant is in jail and he is no more required for investigation. His further detention will not improve the case of the prosecution. Reliance is place in an unreported case of the Hon'ble Supreme Court of Pakistan in the case of Jahzeb Khan v. The State through A.G. KPK and others in Criminal Petition No.594/2020; wherein the Hon'ble Supreme Court has held that:
"4..... Petitioner's continuous detention is not likely to improve upon investigative process, already concluded, thus, he cannot be held behind the bars as a strategy for punishment. A case for petitioner's release on bail stands made out."
7. In view of the above, learned counsel for the applicant has made out a case for grant of bail in terms of subsection (2) of section 497 Cr.P.C. Resultantly, the instant bail application is allowed. The applicant/accused named above is granted post-arrest bail subject to furnishing solvent surety in the sum of Rs.100,000/-and P.R. bonds in the like amount to the satisfaction of learned trial Court.
8. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant/accused on merits.
S-59/Sindh Bail granted.