NASIR IQBAL vs THE STATE
This criminal petition concerns a bail application filed by the petitioner, Nasir Iqbal, who was arrested in connection with an FIR registered under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and Section 346 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to post-arrest bail given the circumstances of the alleged offense and the delay in lodging the FIR. The Court observed that the FIR was lodged with a five-day delay and that the allegations suggested the complainant voluntarily accompanied the petitioner, thereby casting doubt on the presence of kidnapping or abduction, which are essential ingredients for the application of Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Furthermore, the Court noted that the offense under Section 346 of the Pakistan Penal Code 1860 is bailable. Consequently, the Court held that the petitioner had made out a case for further inquiry and accepted the bail petition, granting relief subject to the furnishing of bail bonds.
- Does the voluntary accompaniment of the accused by the complainant negate the essential ingredients of kidnapping or abduction under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Is an offense under Section 346 of the Pakistan Penal Code 1860 considered bailable?
- Does a significant delay in lodging an FIR cast doubt on the veracity of the prosecution's case for the purpose of bail?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 346, Pakistan Penal Code 1860
ORDER
' Nasir Iqbal petitioner aged about 22 years was arrested on the 18th May, 2000 in pursuance of a case registered against him vide First Information Report No,162, dated the 14th May, 2000 recorded under section 12 of the Offence of Zina (Enforcenient of Hudood) Ordinance, 1979 (Ordinance No,VII) read with section 346 of the Pakistan Penal Code regarding an occurrence which allegedly took place on the 9th May, 2000 at 8-30 a.m. Near the Federal Government Public School which is about 2-1/2 Km. From the Police Station Ci,y, District Attock, where the First Information Report was lodged after 5 days on the 14th May, 2000 at 1 noon by Ghazal Mehmood aged about 16 years who claims to be a victim of sodomy committed by Nasir Iqbal petitioner.
2. Learned counsel for the petitioner submits that this is a fit case for the grant of bail because there is a delay of 5 days in lodging the First Information Report which casts doubt on the veracity of the entire prosecution case that the necessary ingredients of section 12 of Ordinance No,VII of 1979 i.e, kidnapping or abduction in order to subject a person to unnatural lust are both missing inasmuch as there was neither kidnapping nor abduction and in this context places reliance upon the following cases:
(1) Muhammad Ibrahim alias Pappu v. State 1996 PCr.LJ 688.
(2) Ashiq Hussain etc. v. State 1997 PCr.LJ 916.
(3) Imran Bhatti v. State 2000 YLR 2096 and
(4) Ghulam Mujtaba v. State 200 YLR 2560 (Multan Bench).
3. A bare reading of the First Information Report, prima facie, seems to indicate that Ghazal Mehmood voluntarily accompanied Nasir Mehmood petitioner, and therefore, the elements of kidnapping or abduction which are sine qua non for the application of section 12 of Ordinance VII of 1979 seem to be missing. Section 346 of the Pakistan Penal Code is punishable with 2 years' R.I. And is bailable.
4. Resultantly, this petition is accepted. The petitioner is granted bail provided he furnishes bail bond in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the trial Court.