ASIF AYUB vs THE STATE
This matter arises from a petition for after-arrest bail filed by Asif Ayub in connection with Case F.I.R. No. 110 of 2001 registered at Police Station under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which was subsequently altered to Section 452 of the Pakistan Penal Code. The core legal question concerns whether the petitioner is entitled to the concession of post-arrest bail given the deletion of the capital/prohibitory charge and the facts of the investigation. The Lahore High Court held that since the offense under the Zina Ordinance was deleted and the remaining charge under Section 452 Pakistan Penal Code carries a maximum sentence of seven years not falling within the prohibitory clause, coupled with the fact that the petitioner has been in continuous incarceration since May 2001 without commencement of the trial, he is entitled to bail. The key principle laid down is that an accused whose offense falls outside the prohibitory clause and whose trial has not commenced without fault on their part should not be kept in indefinite incarceration and is ordinarily entitled to bail.
- Whether an accused charged under Section 452 of the Pakistan Penal Code is entitled to bail when the offense does not fall within the prohibitory clause?
- Does prolonged incarceration without the commencement of trial justify the grant of post-arrest bail?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 452, Pakistan Penal Code 1860
ORDER
1. Asif Ayub son of Muhammad Ayub petitioner seeks after-arrest bail in case F.1.R. No,110 of 2001 dated 29-5-2001 registered under section 10 of Offence of Zina (Enforcement of Hudood)
2. Ordinance, 1979 which was subsequently altered to section 452, P.P.C. got registered by Mst.
3. Sarayya Begum with the allegation that during the night fallen between 27/28-5-2001 the complainant alongwith her other family members including her husband and son were sleeping in the courtyard of their house when at about 2-30 a.m., the petitioner armed with pistol trespassed into their house and committed Zina-bil-Jabr with her on pisto point. She raised hue and cry, on which her husband Muhammad Nawaz and son Wan tried to apprehend the petitioner and they saw two other persons namely Saleem Raza and Ayub, father of the petitioner were also present in the courtyard but the accused made their escape good while making a serial firing.
4. Learned counsel for the. petitioner contends that during the investigation it was found that the petitioner had not committed Zina with the complainant and the offence under section 10 of Zina (Enforcement of Hudood) Ordinance was deleted and during the investigation conducted by D.S.P. it was found that he only trespassed into the house and neither he committed Zina-bil-Jabr nor attempted to commit the same; that the alleged offence does not fall under the prohibitory clause and the petitioner is entitled for concession of bail.
5. Conversely, the bail has been opposed by the learned counsel for the complainant and for the State. It has been argued on behalf of the complainant that the petitioner is also involved in as many as eight cases of similar nature and he is desperate criminal, therefore, is not entitled for concession of bail.
6. Heard. Record perused.
7. The offence under section 10 of Zina (Enforcement of Hudood) Ordinance has been deleted and now the petitioner has been challaned only under section 452, P.P.C. in which the maximum sentence provided under the law is seven years and does not fall under the prohibitory clause. He was arrested on 31-5-2001 and is in continuous incarceration. The challan of the case has already been A submitted but so far the trial has not commenced and there is no likelihood for early commencement/conclusion of the trial and the petitioner cannot be kept in judicial lock-up for an indefinite period, therefore, the petitioner is admitted to 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.