ASHIQ ALI Versus State
This matter concerns a petition for post-arrest bail filed by the accused, Ashiq Ali, who was charged under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 for the alleged abduction of Mst. Hussan Bano. The core legal question was whether the petitioner was entitled to bail given the circumstances of the case, specifically the significant delay in lodging the First Information Report and the nature of the abductee's statement. The Court held that the petitioner was entitled to bail, finding that the case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The Court noted a five-month delay in reporting the crime and observed that the abductee's statement under Section 161 of the Code of Criminal Procedure 1898 did not implicate the petitioner in abduction or Zina, placing him on a better footing than a co-accused who had already been granted bail. The key principle laid down is that where prosecution evidence is weak or inconsistent, and the case requires further inquiry, the accused is entitled to bail under the principle of consistency.
- Does a significant, unexplained delay in lodging an FIR entitle an accused to the concession of bail?
- Is an accused entitled to bail on the principle of consistency if a co-accused with an identical role has already been granted bail?
- When does a criminal case qualify as one of further inquiry under Section 497 of the Code of Criminal Procedure 1898?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Ashiq Ali son of Muhammad Ali, seeks his post‑arrest bail in case F. I. R. No. 106 of 2003 registered under section 16 of the Offence of Zina (Enforcement of Hudood ) Ordinance VII of 1979, at Police Station City Toba Tek Singh on 18‑4‑2003.
2. The complainant Master Muhammad Manzoor Ahmad who lodged the instant F.I.R., stated therein that he had contracted a second marriage with Mst . Hussan Bano the alleged abductee ; that on 17‑11‑2002 at 9‑00 a.m. when he returned back home the said abductee was not present in his house; that on enquiry he was told that the petitioner along with five others had taken away Mst . Hussan Bano on the pretext that her guest had come at the house of one Razia ; that Hussan Bano did not return home that he kept on searching her and ultimately was told by the witnesses that they had seen Hussan Bano being taken to the house of Mst . Razia by the petitioner and others that later on he learnt that his wife had been abducted and the ornaments which she was wearing had also been taken away; that the accused person confessed their guilt before him and promised to return the abductee but they failed to do so. Hence the instant case was registered.
3. The petitioner who was arrested on 11‑6‑2003 applied for his post‑arrest bail which was turned down by a learned Additional Sessions Judge; at Toba Tek Singh vide his order, dated 13‑9‑2003. Hence this bail application.
4. Ch. Muhammad Abdus Saleem , Advocate the learned counsel for the petitioner in support of his plea for bail has argued that there is delay of more than five months in lodging the F.I.R. and that no explanation for the said delay is forthcoming; that after recovery the abductee has made statement under section 161, Cr.P.C . wherein she has levelled no allegation of Zina or abduction against the present petitioner; that co‑accused of the petitioner namely Munir Ahmad alias Toti with almost identical role has since been released on bail by the learned Sessions Judge at Toba Tek Singh vide his order, dated 8‑8‑2003; that principle of consistency demands that the petitioner be also extended the same concession; that there is no convincing material available with the prosecution which could saddle the petitioner with the criminal responsibility; that in view of the peculiar facts and circumstances of the case the petitioner's case becomes one of further inquiry entitling him to the concession of bail.
5. The learned counsel appearing on behalf of the State has strongly opposed the grant of bail to the petitioner. According to him the offence charged with attracts the prohibitory clause of section 497, Cr.P.C . and that there is convincing material available against the petitioner connecting him with the commission of offence.
6. I have considered the arguments addressed by the learned counsel for the parties at length.
7. There is a delay of more than five months in lodging the F.I.R. and that the reasons advanced by the complainant for the said delay prima facie are not very convincing. The learned counsel for the State has read out the statement of the abductee recorded under section 161, Cr.P.C . According to the said statement apart from the allegation that the abductee was administered some intoxicant, whereafter she became unconscious, there is no other allegation of abduction or Zina against the A petitioner and his case appears to be on a better footing than that of his co-accused Munir Ahmad alias Toti who has since been extended the concession of bail.
8. In view of the peculiar facts and circumstances, the case of the petitioner appears to be one of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C .
Accordingly this petition is accepted and the petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs.50 ,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.
H.B.T./A‑303/L Bail granted.