MUHAMMAD ILYAS Versus State
This is a post-arrest bail application arising from F.I.R. No. 49 of 2004 registered under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 at Police Station Noor Pur, District Khushab. The core legal question concerns whether the petitioners are entitled to post-arrest bail in light of disputed questions of fact regarding a prior divorce and a subsequent nikah (marriage) that render the prosecution's case one of further inquiry. The Lahore High Court held that where the investigating officer failed to verify a material document like the nikah nama and records indicate a prior divorce, the prosecution case becomes doubtful at the tentative assessment stage. The court laid down the principle that investigation requires collecting all evidence to find the truth, and where crucial documents create reasonable doubt regarding the commission of the offence, the case falls within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898, warranting the grant of post-arrest bail.
- Whether failure of the investigating officer to verify a material nikah nama makes the prosecution case one of further inquiry for the purpose of bail?
- Can post-arrest bail be granted when the documentary evidence regarding a prior divorce and subsequent marriage creates doubt in the prosecution case?
- What is the extent of evaluation of evidence permissible by a court while deciding a bail application?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
SYED SHABBAR RAZA RIZVI, J .---Petitioners have moved this application for after arrest bail in case F.I.R. No.49 of 2004, dated 23-4-2004 registered under sections 10/16 of the Offence of Zina (Enforcement Hadood) Ordinance-VII of 1979 at Police Station Noor Pur District Khushab. The complainant alleged that on the night of 19/20th March, 2004 he along with other members of his family slept but when he woke up in the early morning, he noticed that his mother Ehsan Bibi was absent from her cot. He made search for her but she was not traceable. He further disclosed in his application that his mother Ehsan Bibi had illegal relations with petitioner Muhammad Ilyas who was also found absent from his residence in the same village. During search Gohar son of Allah Bakhsh and Ameer Abdullah resident of the same village informed complainant that petitioners were seen on the morning of 20th March, 2004 going from Rangpur to Sargodha in a bus. On his report the above F.I.R. No.49 of 2004 was registered on 23-4-2004.
2. The learned counsel for the petitioners contends that there is delay of one month in registration of case. He also contends that the facts disclosed in the\F.I.R. are incorrect. Ehsan Bibi was divorced by her ex-husband Fazal Kareem. According to him notice of divorce was given on 5-8-1998 which became effective on 3-11-1998. In addition to the above, he also complains that fresh Nikah between the petitioners took place on 15th March, 2004, whereas F.I.R. was registered on 23-4-2004 and alleged occurrence had also taken place on the night of 19/20th March, 2004 much later than 15-3-2004. He further submits that petitioners are behind the bars for the last about nine months, they are not required for investigation purposes.
3. The learned counsel appearing on behalf of the State submits that Talaq is doubtful as the record attached by the petitioners with this bail application shows statement of ex-husband regarding divorce, dated 22-10-1998, therefore, how could date of notice i.e. 5-8-1998 be believed. He further submits that complainant is real son of Ehsan Bibi petitioner and he would never like to implicate his mother falsely. He further relies on the statement on one Ghulam Abbas real brother of petitioner Ehsan Bibi who also supported the version of the complainant. In addition to the above statement, he contends that police have found petitioners guilty and Nikah Nama was never brought by the petitioners on record. Challan has already been submitted and the trial is in progress, therefore, petitioners do not deserve for the concession of bail at this stage.
4. I have heard the learned counsel for the parties and perused the record.
5. Since this is bail application, this Court cannot examine the evidence collected by the prosecution in depth or critically. However, tentative consideration is made. I have asked the learned counsel appearing for the State that whether Investigating Officer verified the veracity of Nikah Nama, dated 15-3-2004. According to the learned counsel for the State the Investigating Officer did not verify the veracity of the above Nikah Nama as it was not produced by the petitioners to him. Investigation means collection of evidence, therefore, in my opinion, it was a basic duty of the Investigating Officer to find the truth. In the instant case the Investigating Officer must have given his finding on the veracity of the Nikah Nama as it took place on 15-3-2004 earlier than the date of occurrence and date of registration of case. The record also shows that divorce had taken place between Ehsan Bibi and her ex-husband which became effective on 3-11-1998. The above two documents make the case of prosecution doubtful, at least, for the purpose of considering bail. Therefore, I consider that this is a case of further inquiry, hence, this petition is accepted and the petitioners shall be released on bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of learned trial Court.
N.H.Q./M-833/L Bail allowed.