ASHIQ MASIH (Islamic name ABDUL WAHID) vs THE STATE
This matter concerns a petition for post-arrest bail in a criminal case involving allegations under the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The petitioner, Ashiq Masih (also known as Abdul Wahid), was accused of abducting the complainant's daughter, Shamim. The core legal question was whether the petitioner was entitled to bail given the complainant's subsequent exculpation of the accused and the alleged victim's claim that she had converted to Islam, dissolved her previous marriage, and entered into a valid marriage with the petitioner. The Court held that the petitioner was entitled to bail, noting that the complainant had exonerated the accused during his testimony as a prosecution witness. Furthermore, the Court observed that the petitioner had been incarcerated for over a year without the conclusion of the trial, was not a previous convict, and that the accusations required further probe. The principle laid down is that where the complainant exculpates the accused and the case requires further inquiry, the petitioner is entitled to the concession of bail pending trial.
- Whether a petitioner is entitled to bail when the complainant has exculpated the accused during trial proceedings?
- Does a case requiring further probe into the circumstances of an alleged abduction and subsequent marriage justify the grant of bail?
- Can a petitioner be granted bail if they have been incarcerated for over a year without the conclusion of the trial?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
' Through First Information Report No,524 of 1998, under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), dated 30-11-1998, Bhansa Maseeh alleged that the petitioner alongwith other enticed away his daughter, namely, Shamim, wife of Salamat Maseeh, aged 22 years. During the course of investigation, co-accused of the petitioner, namely, Zahoor, Khamau and Qubra were given clear slate by the Investigating Officer and for that reason they were not even challaned in the case. Petitioner could be arrested only on 7-7-1999, when he was refused bail before arrest by a learned Additional Sessions Judge at Lahore. Shamim was also taken into custody by the police on that very day. They were interrogated by the Investigating Officer during the process of investigation. The stand point of Shamim was that she was not abducted by the petitioner and that after embracing "Islam" she had contracted marriage with the petitioner, who had also converted to "Islam". This situation brought her earlier marriage to an end and, as such, could contract another marriage, which she did. She allegedly made two statements of different kinds before a Court at Lahore that she is legally wedded wife of Ashiq Maseeh, the petitioner. Ashiq Maseeh petitioner adopted a new Islamic name (Abdul Wahid). Likewise Shamim adopted new name as "Aisha". They started living happily as husband and wife.
2. Learned counsel for the petitioner has brought this fact to the notice of the Court that Bhansa Maseeh, father of Shamim appeared as P.W.1 before the trial Court, where his statement was recorded. He exculpated both the accused from the commission of crime of Zina. He renewed his application before learned Sessions Judge, Lahore, who made over the same to a learned Additional Sessions Judge for its disposal in accordance with law. The said Additional Sessions Judge, by virtue of his order, dated 22-5-2000 declined this relief to him. Hence this application before this Court.
3. Learned counsel for the petitioner too strongly argued that Shamim (Mst. Aisha) was by all means competent under the law to contract marriage with Ashiq Maseeh (Abdul Wahid) and by so doing they cannot be held guilty of the commission of offence of Zina and that even Bhansa Maseeh had exonerated both of them. Petitioner is behind the bars for the last about more than one year. Trial has not been concluded so far. He is neither a previous convict nor a hardened criminal. Accusation brought against him require further probe into the matter and, as such, he has made out a good case for grant of bail.
4. Accordingly, I direct that the petitioner be released on bail subject to his furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the trial Court.
Any lapse on his part will disentitle him to remain, on bail any further.