GHULAM HAIDER vs MUHAMMAD IRSHAD
This matter arises from a criminal petition filed by the complainant Ghulam Haider seeking the cancellation of post-arrest bail granted to respondent Muhammad Irshad by the Sessions Judge, Khushab, in respect of a case registered under Sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question concerns whether sufficient grounds existed for the cancellation of bail where the alleged victim made statements under Section 164 of the Code of Criminal Procedure absolving the accused of the principal charge and stating she left the house of her own accord. The Lahore High Court held that the statement of the alleged victim asserting that she left of her own free will and that the respondent did not commit Zina with her justified the grant of bail. The court laid down the principle that such exculpatory statements by the victim provide adequate grounds to sustain post-arrest bail, resulting in the dismissal of the bail cancellation application.
- Whether the statement of an alleged victim under Section 164 of the Code of Criminal Procedure is sufficient ground to sustain post-arrest bail in a case under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Does the voluntary departure of an alleged victim from her house justify the refusal to cancel bail granted to the accused?
- Whether bail once granted should be cancelled in the absence of persuasive grounds showing misuse of concession?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 164, Code of Criminal Procedure 1898
ORDER
' Complainant Ghulam Haider has moved the instant application for cancellation of bail granted to Muhammad Irshad respondent No,1 by Sessions Judge, Khushab on 8-12-1998 in F.I.R. No,138 registered on 23-9-1998 under sections 10, 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance (VII of 1979), with Police Station Noorpur District Khushab.
2. The prosecution version as gleaned out of the F.I.R. Authored by Ghulam Haider is that on the night between 22/23-9-1993 his wife Zainab Khatoon went out of the house on the pretext to ease herself but did net return and he was told by the witnesses that Muhammad Irshad respondent No,1 along with his brother Muhammad Asif were seen taking Zainab Khatoon in their white ear.
Complainant stated that Muhammad Irshad with the help of his brothers abducted his wife Mst.
Zainab Bibi for committing illicit intercourse.
3. Pre-arrest bail of respondent Irshad was declined by Sessions Judge, Khushab vide his order, dated 3-11-1998, however, his application for post-arrest bail succeeded and bail was allowed to him by the same Court vide its order, dated 8-12-1998. Mst. Zainab Khatoon made a statement that although she was married with Ghulam Haider when she was a minor but later on she accompanied the complainant as his legally-wedded wife. Her husband had suspicion about her character and so much so that on 20-9-1998 he made an effort to commit carnal intercourse with her. On her refusal she was subjected to severe beatings with the result that she went to the house of her brother-in-law who refused to accommodate her. However, later on, she went to the Chamber of an Advocate and through his good offices was sent to Darul Amaan. A suit for dissolution of marriage filed by Mst. Zainab Khatoon against her husband Ghulam Haider complainant is pending adjudication before the Judge Family Court. Sister of Zainab Khatoon is married to one Fayyaz brother of respondent No, I. In her statement under section 164, Cr.P.C. Mst.
Zainab Khatoon stated that the petitioner Irshad did not commit Zina with her.
4. The assertion of Mst. Zainab Khatoon that she left her house of her own and that Irshad respondent did not commit Zina with her was sufficient to entitle him to grant of bail which was rightly extended by Sessions Judge, Khushab. Learned counsel appearing for the complainant has not persuaded me to recall the bail granting order. I see no merit in the instant application for cancellation of bail which is accordingly dismissed.