MUHAMMAD QASIM Versus THE STATE
This matter involves a criminal petition seeking post-arrest bail for the accused, Muhammad Qasim, who was implicated in an F.I.R. under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and subsequently Section 10(2) of the same Ordinance for allegedly enticing away the complainant's wife for Zina. The core legal question is whether the petitioner is entitled to post-arrest bail considering the co-accused's prior grant of bail, the lack of direct or indirect evidence of Zina-bil-Raza, and a decree for dissolution of marriage in favour of the co-accused. The Lahore High Court held that the circumstances, including the co-accused's bail order and the dissolution of marriage, rendered the petitioner's case one of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, and that mere absconsion does not bar bail when a case for further inquiry is made out. The court laid down the principle that observations regarding the lack of evidence in a co-accused's bail order are relevant to a co-accused's petition, and that absconsion alone does not preclude the grant of bail in further inquiry cases.
- Whether the grant of bail to a co-accused based on the absence of evidence of Zina-bil-Raza renders the case of the remaining accused one of further inquiry?
- Does mere absconsion of an accused disentitle him to post-arrest bail when his case otherwise falls within the scope of further inquiry?
- What is the effect of a decree for dissolution of marriage obtained by a co-accused on a bail petition involving charges under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Muhammad Qasim petitioner through the instant petition seeks post-arrest bail in case F.I.R. No. 138 dated 26-6-2001, registered under section 16, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), with Police Station Saddar, Dunyapur, District Lodhran. Later on the police have added section 10(2) of the same in it.
2. Briefly the prosecution case as per F.I.R. is that on the night between 20/21-6-2001 he (petitioner) deceitfully had enticed away Mst. Hajran Mai, wife of the complainant for Zina.
3. It has been contended on his behalf that he has falsely been roped in; that he had not enticed or taken away Mst. Hajran Mai for any unlawful purpose; that in fact the complainant about one year prior to the registration of the case had kicked her out of the house and she, therefore, was constrained to bring suit for dissolution of marriage against him; that her suit for dissolution of marriage was ex parte decreed by Sheikh Allah Bakhsh, learned Judge Family Court, Jalalpur Pirwala on 22-7-2002; that she has been allowed bail by the learned Additional Sessions Judge, Lodhran vide his order dated 26-10-2002 and in the same he has observed that there is no direct or indirect evidence suggesting that she has committed Zina-bil-Raza with Muhammad Qasim (petitioner) and this observation is also relevant and helpful to his case suggesting that there is no direct or indirect evidence of Zina-bil-Raza with her against him and hence his case has become one of further inquiry; that he had no knowledge of the case against him and hence his alleged abscondence will not come in his way to the grant of bail and in this regard reliance has been placed upon the case of Kiramat Ullah v. The State (1992 PCr.LJ Peshawar 392) and that he is behind the bars for the last about four months and is previous non convict.
4. Learned State Counsel has opposed the petition on the ground that he is named in the F.I.R. that he had enticed away the wife of the complainant and indulged in Zina with her and so apparently he is connected with the alleged offence and that he remained absconder for quite some time and so he is not entitled to the concession of bail.
5. I have carefully considered the submissions made by both the sides with the help of available record.
6. Allegedly, he had enticed away the wife of the complainant and thereafter, wilfully had indulged in Zina with her. There is with the petition the copy of suit for dissolution of marriage brought by Mst. Hajran Mai (co-accused) against the complainant Zafar and in the same she has averred that he had kicked her out of the house about a year prior to the. same. The date of institution of the suit was 21-1-2002. It thus, was somewhere near 21-1-2001, while the alleged incident as is obvious from the above position had taken place on the night between 20/21-6-2001 and this was much after the same. However, the said suit stood decreed by the Judge Family Court on 22-7-2002. There is with he petition the certified copy of the order dated 26-10-2002 recorded by he learned Additional, Sessions Judge, Lodhran on the bail petition of Mst. Hajran Mai. He has observed therein as under:--
"There is no direct or indirect evidence suggesting that the accused-petitioner has committed Zina-bil-Raza with her co accused Muhammad Qasim."
She has been admitted to bail. I am sure that this observation in her case is quite relevant and applicable to his case.
7. In view of the factum of decree for dissolution of marriage in favour of his co-accused Mst. Hajran Mai and above observation recorded by the learned Additional Sessions Judge on her bail plea definitely renders his case as one of further inquiry and brings the same within the mischief of subsection (2) of section 497, Cr.P.C.
8. He is stated to be behind the bars for the last about four months and stated to be previous non-convict.
9. In these circumstances, when his case has been found fit for bail, his mere alleged absconsion will not come in his way to the grant of, bail. In this regard reliance is placed upon the case of Kiramat Ullah v. The State (1992 PCr.LJ Peshawar 399). Thus the case for his enlargement on bail has been made out. Resultantly, the petition is accepted and he is admitted to bail provided he furnishes bail bonds in the sum of Rs.100,000 with two sureties each in the like amount to the satisfaction of the learned Sessions Judge/Trial Court.
H.B.T./M-1875/L Bail granted.