MUSHARAF HUSSAIN vs THE STATE
This matter arises from a petition for leave to appeal against the Lahore High Court's order dismissing the petitioner's bail application in a case involving an alleged offence of Zina. The petitioner was initially implicated in a murder case, but subsequently, a case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against him following the death of the female victim and the receipt of a positive report regarding vaginal swabs. The core legal question was whether, given the circumstances and the credibility of the evidence, the petitioner was entitled to bail. The Supreme Court observed that the two alleged eyewitnesses to the Zina had been examined during the initial murder investigation but had failed to mention any allegation of Zina, making their subsequent statements recorded three months later appear as an afterthought. Consequently, the Court converted the petition into an appeal and allowed bail, holding that the unexplained delay and omission in the initial statements cast sufficient doubt on the prosecution's case at the pre-trial stage to warrant the grant of bail.
- Does the failure of eyewitnesses to mention an alleged offence during the initial investigation of a related crime render their subsequent statements regarding that offence suspect?
- Is bail appropriate when the prosecution's case relies on statements recorded with significant delay after the initial investigation?
- Section 324, Pakistan Penal Code 1860
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
' MUHAMMAD RAFIQ TARAR, J.---Musharaf Hussain petitioner seeks leave to appeal from the order of a learned Single Judge of the Lahore High Court dated 23-10-1993 whereby his bail application was dismissed.
2. The brief facts of the case are that on 31-8-1992 a case under section 324 of the P.P.C. Was registered against one Ahmad Nawaz on the report of Muhammad Hussain wherein he alleged that on 30-8-1992 at about 10-00 p.m. Musharaf Hussain (petitioner herein) had gone to the house of Ali Muhammad son of Sher Muhammad. Ahmad Nawaz armed with a pistol also came there and after throwing a challenge on Musharaf Hussain that he would teach him a lesson for entering the house of his uncle fired at him hitting his abdomen. Mst Kaniz Fatima (sister of Ahmad Nawaz) stepped froward to rescue him upon which Ahmad Nawaz fired at her hitting her left thigh. The occurrence was also witnessed by Muhammad Hang.
' The motive alleged in the said report was that Ahmad Nawaz had a suspicion that Musharaf Hussain was having illicit relations with his sister Mst Kaniz Fatima.
3. Mst. Kaniz Fatima later on expired. Her vaginal swabs were sent for detection of semen and on receipt of positive report a case under section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, was registered against the petitioner.
4. The petitioner moved a bail application in the Lahore High Court which was dismissed on the ground that eye-witnesses "had seen the petitioner committing zina which led to the murder of a girl with whom the petitioner was indulging in sexual intercourse".
5. Learned counsel for the petitioner contends that two alleged eyewitnesses of Zina namely Muhammad Ashraf and Mst Bagan were also examined by the Investigating Officer during the investigation of aforesaid murder case but they had not uttered a word about commission of zina and the allegation of zina made by them in their subsequent statements recorded three months later was only an afterthought. The learned State counsel does not controvert the contention that the two alleged eye-witnesses in their earlier statements recorded during the investigation of the murder case had not levelled any allegation of zina against the petitioner.
' In the circumstances this petition is converted into an appeal and disposed of allowing bail in the sum of Rs,20,000 with two sureties in the like amount to the satisfaction of A.C. Shahpur Saddar.