TAHIR ABBAS Alias BABAR ALI vs THE STATE
This is a criminal petition by Tahir Abbas alias Babar Ali seeking post-arrest bail in a case registered under sections 10 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Mochiwala, District Jhang. The core legal question is whether the overt act of removing the victim's shalwar constitutes an attempt to commit rape or an offence of outraging the modesty under the Pakistan Penal Code, warranting further inquiry into the petitioner's guilt. The Lahore High Court accepted the bail application, holding that the specific classification of the offence requires trial determination and noting the petitioner's continuous incarceration and the existence of a long-standing rivalry between the parties. The key principle laid down is that where the exact legal characterization of an overt act is debatable and further inquiry into guilt is warranted, discretion for post-arrest bail may be exercised in favor of the accused.
- Does the removal of a victim's shalwar necessarily constitute an attempt to commit rape?
- Can post-arrest bail be granted when the exact legal categorization of an overt act requires further determination at trial?
- Is a long-standing rivalry between parties a relevant consideration for granting bail under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 18, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 354, Pakistan Penal Code 1860
ORDER
Tahir Abbas alias Babar A.I son of Muhammad Khan seeks bail in a case registered vide F.I.R. No. 1- 53 with Police Station Mochiwala, District Jhang under sections 10 and-18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979.
2. Allegation contained in the First Information Report authored by Mst. Sllan Bibi is that her daughter Asiya Batool aged 12 years on the fateful evening was coming to her house after making purchases when she was way--laid by the petitioner, who pushed her into wheat crop where her shalwar was removed by breaking her string in order to commit sexual intercourse with her against her wish. On her hue and cry the witnesses arrived and she was saved from being dishonoured.
3.Post-arrest bail was declined by the Additional Sessions Judge, Jhang on 31-5-2000.
4. Learned counsel for the petitioner has vehemently contended that the overt act even if believed does not amount to attempt to commit rape. It is stated that the petitioner is behind the bars since 20-4-2000 and as such is entitled to bail by granting discretion in his favour. On the other hand learned counsel for the State has opposed the allowance of bail.
5. I have considered the arguments and have also gone through the record.
6. Breaking of the string of shalwar and removing it is yet to be determined by the Court whether it amounts to attempt to commit rape or the offence falls for outraging the modesty of the girl punishable under section 354, P.P.C. The petitioner is behind the bars since 20-4-2000 and it is stated by the learned counsel that there is long-standing rivalry between both the parties. In these circumstances I am inclined to exercise my discretion in favour of the petitioner as he has successfully demonstrated that there are reasonable grounds to believe that he has not committed a non-bailable offence yet there may be further grounds to inquire into his guilt.
7. Concomitantly, the application is accepted, provided the petitioner furnishes security in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the Trial Judge.
H.B.T./T-39/L
Cited by 2 cases
- ABDUL RAZZAQ alias BHOLA vs STATE PLJ 2008 Cr.C. (Lahore) 206
- Abdul Razzaq Alias Bhola vs The State K.L.R. 2008 Criminal Cases 148