Pakistan Case LawABDUL HAMID Versus THE STATE
This matter arises from a petition for leave to appeal against the order of the High Court, which had cancelled the pre-trial bail previously granted to the petitioner and dismissed a subsequent bail application. The petitioner was challaned under Section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 for allegedly abducting and raping the complainant's daughter. The core legal question concerns whether the petitioner was entitled to bail given the unexplained five-month delay in lodging the FIR, the victim's status as an educated adult, and the documentary evidence including a Nikahnama and statements indicating she may have contracted marriage of her own free will. The Supreme Court held that in view of the documentary evidence and the surrounding circumstances, the petitioner was entitled to bail. The Court converted the petition into an appeal, allowed it, set aside the High Court's orders, and restored the bail granted by the Additional Sessions Judge. The key principle laid down is that where documentary evidence and statements of an educated adult victim raise a plausible plea of free will and marriage, alongside an unexplained delay in lodging the FIR, further inquiry into the petitioner's guilt is warranted under Section 497(2) of the Code of Criminal Procedure 1898, justifying the grant of bail.
- Whether an unexplained delay of five months in lodging the FIR justifies the grant of bail in a case under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Does the production of a Nikahnama and a statement by an educated adult victim supporting marriage create a case of further inquiry for the purpose of bail?
- Under what circumstances can the Supreme Court interfere with the cancellation of bail by the High Court?
ORDER
SALEEM AKHTAR, J. ---The petitioner seeks leave to appeal against the order of the learned Judge in Chambers of the High Court whereby his bail application was rejected.
2.The petitioner has been challaned on the basis of F.I.R. No, 164/1992 dated 4-9-1992 under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The allegation against him is that he abducted Mst. Shumaila Gul daughter of the complainant for the purpose of committing Zina with her. It has been alleged that he took away Mst. Shumaila deceitfully on the pretext of getting her employment with PIA. It is alleged that he had taken her to Rawalpindi where she appeared for interview and after that she was forced to sign certain documents and papers and was confined and further that rape was committed forcibly by the petitioner. The petitioner's plea was that the F.I.R. Was lodged after a delay of five months without affording any proper explanation. It was also stated that Mst. Shumaila Gul had gone with the petitioner of her own free will and contracted marriage at Rawalpindi. A Nikahnama was also produced. Reliance was also placed on the statement she had made before a Magistrate and the lady DSP, Police Centre at Lahore that she had contracted marriage with the petitioner and wanted to live with him. This statement is alleged to be under coercion and not voluntary. The learned Additional Sessions Judge, Lahore granted bail, but it was cancelled by the learned Judge in Chambers by order dated 28-4-1993 and a further application for grant for bail was also dismissed on 31-5-1993.
3.After hearing the learned counsel for the petitioner notice was issued to the State. The learned counsel appearing for the State has opposed the grant of bail. Ms. Hina Mani, the learned counsel for the petitioner contended that although Mst. Shumaila Gul's father was aware that his daughter was seen moving about with the petitioner, no report was lodged for five months and the delay has not been explained in a proper manner as the alleged search was not necessary in view of the information he had from the P.Ws. She also referred to the documents produced to substantiate that Mst. Shumaila Gul had married the petitioner of her own free will and that such statement was also recorded before the Magistrate and the police officer and if there would have been any coercion at least at that time she could have mentioned all these facts. According to her the entire story and statement of Mst. Shumaila Gull made now was procured under coercion by the prosecution. The undisputed facts are that Mst. Shumaila Gul is a young adult educated girl. She is a gratuate and from documents produced it seems that she had appeared for interview in the office of PIA where she qualified and was medically tested for fitness for service as an airhostess. In this background and in view of the documentary evidence produced at this stage the question would arise whether she had contracted marriage and had gone with the petitioner of her own free will. In these circumstances, in our view the petitioner should have been allowed bail. We, therefore, convert this petition into an appeal and allow it. The impugned orders are set aside and the order of the learned Additional Sessions Judge granting bail to the petitioner is restored.
Cited by 1 case
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Judges on this bench
- Shafiur Rahman2,457 judgments
- Saleem Akhtar1,928 judgments