ABDUL RASHEED Versus THE STATE
This matter concerns a petition for post-arrest bail filed by Abdul Rasheed, who was charged under Sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 for the alleged abduction and Zina-bil-Jabr of the complainant's sister-in-law. The petitioner argued that he was falsely implicated, citing an unexplained three-day delay in the FIR and medical examination, and noting that the prosecutrix herself was arrayed as an accused, implying consent. The State opposed the bail, pointing to the petitioner's presence in the FIR, positive medical evidence, and a positive Chemical Examiner's report. Upon review, the Court noted the absence of direct evidence regarding the alleged offence of Zina-bil-Jabr and highlighted the legal ambiguity arising from the prosecutrix being simultaneously treated as a victim and an accused party. Finding that the petitioner's case fell within the scope of Section 497(2) of the Code of Criminal Procedure 1898, necessitating further inquiry into his guilt, the Court granted post-arrest bail, considering his eight-month incarceration and status as a previous non-convict.
- Does the absence of direct evidence regarding the offence of Zina-bil-Jabr entitle an accused to post-arrest bail under the Code of Criminal Procedure 1898?
- Can an accused be granted bail when the prosecutrix is simultaneously arrayed as an accused in the same case?
- Does a delay in lodging an FIR and conducting a medical examination constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
Abdul Rasheed, the petitioner has sought for after-arrest bail in case F.I.R. No.477, dated 2-9-2002 under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered with Police Station Sadar Arifwala, District Pakpattan Sharif.
2. Briefly the prosecution case as per F.I.R., is that on the night between 30/31-8-2002 at about 5-00 a.m. present petitioner and two unknown persons had forcibly abducted Mst. Najma Bibi alias Gongi, the sister-in-law of the complainant and thereafter he had subjected her to Zina-bil-Jabr.
3. It has been contended on his behalf that he has falsely been roped in that there is three days unexplained delay in lodging the F.I.R.; that there is similar delay in medical examination of the prosecutrix; that the prosecutrix has been arrayed as an accused in this case being consenting party to Zina; that he is no more required by the police; that he is behind the bars for the last about 8 months; and that he is previous non-convict.
4. Conversely the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that the MLR of the prosecutrix shows that she was subjected to Zina-bil-Jabr; that a private complaint has been filed by the complainant on the same facts in which some order is still awaited; and that the report of the Chemical Examiner is positive and all these facts connect him with the crime.
5. I have carefully considered the submissions made from both the sides and perused the record.
6. Allegedly the petitioner alongwith two other unknown persons had forcibly abducted Mst. Najma Bibi, the sister-in-law of the complainant and thereafter he subjected her to Zina-bil-Jabr. She allegedly is a dumb girl and through signs indicated that she was subjected to Zina-bil-Jabr by the petitioner. She has been arrayed as an accused in this case being consenting party to such affair. The learned State Counsel has frankly conceded that there is no direct evidence of Zina or Zina-bil-Jabr against him. The question that in such circumstances, if he can be held liable, for the alleged offence needs serious consideration. His case, thus, is covered under subsection (2) of section 497, Cr.P.C. calling for further inquiry into his guilt. He is stated to be behind the bars for the last about 8 months and a previous non -convict.
7. In these circumstances, I find him entitled to bail. The petition, therefore, is accepted and he is admitted to bail provided he furnishes bail Bond in the sum of Rs.50,000 (Rupees fifty thousand) with one, surety in the like amount to the satisfaction of the learned trial Court.
H.B.T./A-820/L Bail granted.