MUHAMMAD NAEEM Versus THE STATE
This petition was filed by the petitioner seeking post-arrest bail in a case registered under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The prosecution alleged that the petitioner and a co-accused developed an intimacy with the wives of the complainant and his relative, and subsequently enticed them away. The core legal question was whether the petitioner was entitled to post-arrest bail given the delay in reporting the matter, the absence of the abductees from the petitioner's custody at the time of arrest, and the nature of the offence. The Lahore High Court granted bail, holding that the matter was reported to the police with an unexplained delay of eight days, the abductees were not found in the petitioner's company at the time of arrest, and the offence under Section 16 of the Ordinance does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Court reiterated the principle that bail cannot be withheld as a punishment and individuals cannot be confined in jail indefinitely.
- Whether an offence under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can post-arrest bail be withheld as a form of pre-trial punishment where the accused has been in judicial custody and the investigation is complete?
- What is the effect of an unexplained delay of eight days in lodging an FIR on an application for post-arrest bail?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
Muhammad Naeem son of Muhammad Sarwar, petitioner, has sought his post-arrest bail in case F.I.R. No.319 registered at Police Station Khanpur, District Rahim Yar Khan, on 11-8-2002 for offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. Briefly the fact as narrated in the F.I.R. are that the complainant Noor Muhammad alongwith with his wife Mst. Maqboolan Bibi and Abdul Ghafoor alongwith his wife Mst. Hasina Mai lived in the same Ihata. Muhammad Nadeem and Muhammad Naeem accused started visiting the house of the complainant and developed intimacy with the wives of the complainant and Abdul Ghafoor. They were stopped from visiting the house. However, they continued with their love affair. On 3-8-2002 when the complainant and Abdul Ghafoor returned their house, they found that Mst. Maqboolan Bibi and Mst. Hasina Mai were missing.
During search P.Ws. informed the complainant that they were seen in the company of the petitioner and other accused. The accused were contacted by the complainant, who promised to return the abductees but since the accused did not fulfill their promise, the matter was reported to the police.
3. The petitioner was arrested in this case on 18-8-2002 and after completion of investigation is in judicial lock-up.
4. I have heard the learned counsel for the parties and gone through the record. It has been noticed that the matter was reported to the police after the delay of eight days. It was admitted in the F.I.R. that the alleged abductees had developed intimacy with the petitioner and co- accused Muhammad Nadeem. At the time of the arrest of petitioner, the abductees were not found in his company. The abductees are still at large. The offence under section 16 of the Ordinance does not attract the prohibitory clause of section 497, Cr.P.C. Bail cannot be withheld as punishment, and no one can be confined in Jail for unlimited time therefore, I accept this petition and admit the petitioner to bail, subject to his tendering bail bonds in the sum of Rupees Fifty Thousand, with the one surety, in the like amount, to the satisfaction of the Trial Court.
H.B.T./M-1883/L Bail granted.