MUSHTAQ AHMAD alias SHAKI and others vs THE STATE
This matter concerns a petition for post-arrest bail filed by two accused persons, Mushtaq Ahmad and Shams Din, who were charged under Section 11 and Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for the alleged abduction of a woman. The core legal question was whether the petitioners were entitled to bail given the circumstances of the case, including the delay in lodging the First Information Report, the alleged existence of a Nikah Nama, and the lack of evidence regarding forcible abduction. The Court held that the petitioners were entitled to bail, finding that the case against them fell within the scope of Section 497(2) of the Code of Criminal Procedure 1898, necessitating further inquiry into their guilt. The Court emphasized that the investigation was complete, the petitioners had been in custody for six months, and bail should not be withheld as a form of premature punishment, especially when the prosecution's case prima facie lacked essential ingredients of the alleged offence.
- Does an eight-day delay in lodging an FIR and the absence of evidence of forcible abduction constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Is bail to be withheld as a form of premature punishment when the investigation is complete and the accused has been in custody for a significant period?
- Can the existence of a registered Nikah Nama between the accused and the alleged abductee impact the determination of bail in an abduction case?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' Mushtaq Ahmed and Shams Din petitioners are accused persons in case F.I.R. No,925 registered at Police Station Sadder, Pakpattan Sharif on 28-9-1998 for an offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The allegation against the petitioners is that in evening on 20-9-1998 they and their two co-accused had abducted Mst. Zareena sister of Ali Sher complainant. After recovery of Mst. Zareena in this case she made a statement before the police under section 161, Cr.P.C. Whereafter section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 was added to the F.I.R. The petitioners were arrested by the local police in connection with this case on 29-9-1998. Their application for post-arrest bail was subsequently dismissed by the learned Additional Sessions Judge, Arifwala camp at Pakpattan sharif on 12-3- 1999. Hence, the present petition before this Court 2 . After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. In this case had been lodged with a delay of 8 days. The alleged abductee was not recovered from the custody of the present petition and that she had been produced before the local police by them complainant himself on 2-10-1998. The petitioners have maintained that Mst. Zareena had contracted Nikha with petitioner No,1 on 26-8-1998 even before the alleged occurrence or the consequent F.I.R. In this connection a registered Nikha Nama is relied upon by the petitioners. A perusal of the F.I.R. Itself prima facie shows an element of consent of the alleged abductee and the ingredients of forcible abduction are significantly missing therefrom. In these circumstances it is not insignificant that no statement of the alleged abductee under section 164, Cr.P.C. Has been got recorded in this case . It is not disputed that the challan in this case has already been, submitted after finalization of investigation. The petitioners have already spent about 6 months in jail in connection with this case and their custody is no longer requiered for the purpose of investigation. It is trite law that bail ought not to be withheld by way of premature punishment.
3. For what has been discussed above the case against the petitioners squarely attracts the provision of subsection (2) of section 497, Cr.P.C. Calling for further inquiry into the petitioners' guilt.
This pitition is, therefore, allowed and the petitioners are admitted to bail in the sum Rs,50,000 (rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.