FAZAL AHMED vs THE STATE
This matter involves two petitions for post-arrest bail arising from F.I.R. No. 45 of 1999 registered under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Samma Sattah, District Bahawalpur. The core legal question concerns whether the petitioners were entitled to post-arrest bail considering the circumstances of the raid conducted by the investigating officer himself and the lack of active progress in the trial. The Lahore High Court held that the petitioners made out a case for bail, noting that the sole evidence appeared to be that of the complainant/investigating officer, a potential witness had negated the occurrence by affidavit, and the trial was not progressing actively despite the submission of the challan. Consequently, the court admitted the petitioners to post-arrest bail, establishing that questionable police-led raids and lack of trial progress can tilt the balance in favor of granting bail in appropriate circumstances.
- Whether post-arrest bail can be granted when the primary evidence consists of the statement of the complainant who is also the investigating officer?
- Does a delay in trial progress after the submission of the challan provide sufficient ground for the grant of bail?
- Whether an affidavit from a local witness denying the occurrence can influence the decision on a bail petition?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
' Through this single order, the petitions for bail after arrest (Criminal Miscellaneous 835/B of 1999 and 1083/B of 1999) moved on behalf of Fazal Ahmad and Nazir Maee are being disposed of.
2. A case vide F.I.R. No,45 of 1999, dated 1-3-1999, under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Samma Sattah, District Bahawalpur, against the petitioners upon spy information, raid was conducted by Muhammad Arshad, S.-I. Police Station Samma Sattah who found the petitioners committing Zina.
3. The challan in the case has been submitted to the learned trial Court.
4. The prayer of the petitioners for the post-arrest bail has already been declined by the learned Additional Sessions Judge, Bahawalpur, vide his order, dated 2-6-1999. Hence these petitions.
5. Learned counsel for the petitioners argues that petitioners are behind the bars since 1-3-1999 though the challan has been submitted to the trial Court yet there is no active progress in the trial; that there is no evidence against the petitioner for the commission of the alleged offence except that of the statement of the complainant who is himself Investigating Officer; that the only evidence available was that of Chowkidar of the garden who had already given an affidavit to the Investigating Officer to the effect that no such occurrence had ever taken place in the garden; that the registration of the case is an outcome of the mala fides on the part of the S.-I./Investigating Officer and the said Investigating Officer has got registered so many similar F.I.Rs, in order to show his "performance"; that the petitioners are not known to each other. The petitioners were not arrested from the place of alleged occurrence; that no time of occurrence has been mentioned in the F.I.R. In support of his submissions, he relied upon 1983 SCM R 790.
6. Learned counsel appearing on behalf of the State opposes the bail petition on the ground that the alleged offence falls within the prohibitory clause but he remained unable to refute the above factual position.
7. Having been pursuaded by the arguments of the learned counsel for the petitioners, I am inclined to allow this petition.
8. Resultantly, the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs,50,000 with two sureties, each in the like amount to the satisfaction of learned trial Court.
Disposed of.