ABDUL GHANI Versus STATE
This matter originated as a petition for leave to appeal against the order of the Peshawar High Court, which had refused to grant post-arrest bail to the accused/appellants charged under Section 17(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The accused were charged in a promptly lodged F.I.R. and attributed an effective role in the commission of the offence. Before the Supreme Court, the appellants argued that their connection to the offence was not prima facie established, specifically noting that no weapon was recovered directly from their possession, as the pistol in question was discovered in a drain by a witness. Upon hearing the parties, the Supreme Court converted the petition into an appeal. The Court held that the circumstances of the case warranted the concession of bail, effectively determining that the appellants' guilt was not so clearly established at this stage as to preclude bail. Consequently, the Court allowed the appeal and admitted the accused to bail, subject to the provision of surety bonds to the satisfaction of the trial court.
- Does the absence of a direct recovery of a weapon from the accused entitle them to the concession of bail?
- Can the Supreme Court convert a criminal petition for leave to appeal into an appeal to grant bail?
- Is a case of further enquiry established when the prosecution fails to connect the accused to the recovery of the weapon?
- Section 17(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
MIAN BURHANUDDIN KHAN, J.‑ ‑Accused/appellants were charged under section 17(3) of the Hudood Ordinance, 1979. They applied for bail to the learned Sessions Judge, Bannu who rejected their bail application on the ground that they were directly charged in the F.I.R. which was promptly lodged and have been attributed effective role in the commission of the offence, per order, dated 8‑1‑1986. The accused/ appellants then approached the Peshawar High Court, D.I. Khan Bench and the learned High Court Judge also refused to enlarge them on bail vide the impugned order, dated 18‑2‑1986 passed in Criminal Miscellaneous No. 4 of 1986. The accused /appellants now came up to this Court seeking bail. Notice was issued to the Advocate‑General, N.‑W.F.P., who is present.
2. Learned counsel for the accused /appellants Maulvi Sirajul Haq urged before us that the accused /appellants have not been connected with the commission of the offence as no recovery of the pistol from them has been made, and instead the same was found lying in a drain which was picked up by the witness and handed over to the police; and that this is a case of further enquiry in which the guilty of the accused /appellants has not prima facie been established to make out a case under section 17 (3) of the aforesaid Ordinance.
3. We have heard the learned counsel for, the parties. We convert Criminal Petition for Leave to Appeal No. 8/R/8ti into appeal. We consider that in this case the accused/ appellants would be entitled to concession of bail. We order that the accused /appellants be admitted to bail in the sum of rupees twenty‑five thousand with one surety each to the satisfaction of the trial Court/Sessions Judge, Rannu. Appeal allowed.
M.I. Order accordingly.