ABDUL HAMID vs THE STATE
This criminal petition for leave to appeal arises from an order of the High Court rejecting the petitioner's bail application. The petitioner was challaned under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 on allegations of abducting the complainant's daughter, Mst. Shumaila Gul, for the purpose of Zina, confining her, and committing forcible rape. The petitioner contended that the FIR was lodged after a delayed period without proper explanation and that the prosecutrix had contracted a voluntary marriage with him, supported by a Nikah Nama and statements allegedly made before a Magistrate and a lady DSP. The core legal question concerned whether the prosecutrix had gone with the petitioner and contracted marriage of her own free will, considering her status as an educated adult and documentary evidence. The Supreme Court converted the petition into an appeal and allowed it, holding that in view of the background and documentary evidence regarding the alleged voluntary marriage, the petitioner was entitled to bail, thereby setting aside the High Court's order and restoring the Sessions Court's order granting bail. The key principle laid down is that where an educated adult prosecutrix's voluntary movement and marriage are supported by contemporaneous documents and statements at the bail stage, further inquiry into her consent warrants the grant of bail.
- Whether bail should be granted when an educated adult prosecutrix's voluntary marriage and movement are supported by documentary evidence at the bail stage?
- Does an unexplained delay in lodging the FIR in a Zina case support the grant of bail to the accused?
- Whether the Supreme Court will restore a bail order of the Sessions Court when the High Court has improperly cancelled it in the face of supporting documentary evidence?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979
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 FIR No. 164/1992 dated 4.9.1992 under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The allegation against him is that he adducted 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 FIR was lodged after a delay of i.e 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 Nikah Nama was also produced. Reliance was also placed on the statement she had made before a Magistrate and the lady DSP, Police centre at Lahore and wanted to i.e 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 of 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 Jillani, the learned counsel for the petitioner contended that although Mst. Shumaila Guls father was aware that his daughter was seen moving about with the petitioner, no report was lodged for i.e 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 PWs. 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 Gul 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 graduate and from documents produced it seems that she had appeared for interview in the office of PIA where she qualified and was medically tested also for fitness for service as an air- hostess. 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.