ZAFRULLAH alias PHULA Versus THE STATE
This is a criminal petition filed by Zafrullah alias Phula seeking post-arrest bail in case F.I.R. No. 211 registered under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Kassoki, District Hafizabad. The core legal question concerns whether the petitioner is entitled to post-arrest bail in light of the delayed F.I.R., a subsequent Nikahnama, an affidavit and a statement under section 164 of the Code of Criminal Procedure, 1898 exonerating the petitioner and indicating consent and marriage. The Lahore High Court held that the case against the petitioner calls for further inquiry into his guilt under subsection (2) of section 497 of the Code of Criminal Procedure, 1898. The petition was consequently allowed, admitting the petitioner to bail. The key principle laid down is that where the statement of the alleged abductee under section 164 Cr.P.C. contradicts the forcible abduction allegations and indicates consent or marriage, the matter falls within the scope of further inquiry warranting the grant of bail.
- Whether delayed F.I.R. and a contradictory statement under section 164 Cr.P.C. make a case for further inquiry under section 497(2) Cr.P.C.?
- Does a statement under section 164 Cr.P.C. showing travel without protest negate allegations of forcible abduction for the purpose of bail?
- Is an accused entitled to post-arrest bail when the alleged abductee contracts a Nikah with a co-accused and exonerates the petitioner?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 164, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Zafrullah alias Phula petitioner is an accused person in case F.I.R. No,211 registered at Police Station Kassoki, District Hafizabad on 20-7-1999 for offences under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The allegations against the petitioner and his seven co- accused are that they had abducted Mst. Shabana Kausar, sister of Zulfiqar Ali complainant, at about mid-Light during the night between 14/15-7-1999 and subsequently, Sarfraz Ahmed co- accused had committed Zina-bil-Jabr with her. After his arrest by the local police in connection with this case the petitioner applied for his post-arrest bail before the learned Court of Session, Hafizabad but his application in that regard was dismissed by the learned Additional Sessions Judge, Hafizabad vide order, dated 18-9-1999. Hence the present petition before this Court.
2. After hearing the learned counsel for the parties and going through the documents annexed with this petition it has been noticed that the F.I.R. In this case had been lodged with a delay of five days.
A Nikahmarna, dated 24-7-1999 is available on the record according to which the alleged abdcutee Mst. Shabana Kausar had contracted Nikah with Sarfraz co-accused. The learned counsel for the petitioner has also relied upon an affidavit sworn by Mst. Shabana Kausar belying and controverting the allegations levelled against the petitioner and his co-accused in the F.I.R.
Although the alleged abductee's age is recorded in the F.I.R. As 12/13 years yet the abovesaid Nikahnama records her age to be 20 years. The learned counsel for the petitioner has also relied upon a copy of the birth entry of the said lady recorded at the Local Union Council showing her age to be 22 years at the time of the alleged occurrence. Mst. Shabana Kausar had also made a statement under section 164, Cr.P.C. On 26-7-1999 wherein she had 4 mentioned performance of her Nikah with the petitioner's co-accused namely Sarfraz Ahmed on 24-7-1999. The said statement under section 164, Cr.P.C. Carried a story different from that recorded in the F.I.R.
According to the said statement the alleged abdcutee had been travelling from place to place with the accused party of this case in public vehicles without any protest and had been residing with them at different places without having tried to run away. The said conduct of the lady prima facie contradicts allegations of her forcible abduction. It has pertinently been noticed that in the said statement under section 164, Cr.P.C. Mst. Shabana Kausar had not levelled any allegation of Zina-bil-Jabr against the present petitioner.
2. For what has been observed above the case against the petitioner calls for further inquiry into his guilt within, the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial,Court.