GULZAR AHMAD and another vs THE STATE
This matter arises from a criminal petition seeking post-arrest bail filed by Gulzar Ahmad and Mst. Robina in relation to F.I.R. No. 138 registered under sections 10(2) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 380 of the Pakistan Penal Code 1860. The core legal question concerns whether the petitioners are entitled to post-arrest bail given the circumstances and sequence of events regarding their marriage and the nature of the allegations. The Lahore High Court held that the prosecution's allegations of abduction appeared prima facie doubtful as investigation established a prior valid Nikah following a divorce, no stolen property was recovered, the challan had already been submitted rendering physical custody unnecessary, and petitioner No. 2 as a woman fell under the beneficial proviso of section 497, Code of Criminal Procedure 1898. Consequently, the petition was allowed and bail was granted subject to furnishing surety bonds.
- Whether post-arrest bail should be granted when the sequence of events regarding marriage renders the prosecution's allegation of abduction prima facie doubtful?
- Does the case of a female petitioner attract the beneficial provisions of the first proviso to subsection (1) of section 497 of the Code of Criminal Procedure 1898?
- Is post-arrest bail warranted when the challan has been submitted and the physical custody of the accused is no longer required for investigation?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 380, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' Through this petition Gulzar Ahmad and Mst. Robina petitioners have sought post-arrest bail in case F.I.R. No,138 registered at Police Station City, Pakpattan Sharif on 23-4-2001 for offence under sections 10(2)/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 380, P.P.C.
2. After hearing the learned counsel for the parties and going through the record it has been noticed that according to the F.I.R. Gulzar Ahmad petitioner No,1 had abducted/enticed away Mst.
Robina petitioner No,2 on 18-4-2001 but during the investigation it had been established that on 30- 3-2001 Gulzar Ahmad petitioner No,1 had divorced his previous wife namely Mst. Nasreen Akhtar (Sister of Mst. Robina petitioner No, 2) and had then contracted Nikah with Mst. Robina petitioner No,2 on 15-4-2001 i,e, three days prior to the alleged abduction. This sequence of events surely renders the prosecution's allegation levelled in the F.I.R. To be prima facie doubtful. Both the present petitioners have consistently maintained that they have duly contracted marriage with each other after petitioner No,1 had divorced his previous wife. It is not disputed that no stolen property was recovered from the petitioners' possession during the investigation. The challan in this case has already been submitted and, thus, physical custody of the petitioners is no longer required for the purposes of investigation. Petitioner No,2 is a woman and her case attracts the provisions of the first proviso to subsection (1) of section 497, Cr.P.C.
3. For what has been discussed above this petition is allowed and the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand only) each which two sureties each in the like amount to the satisfaction of the learned trial Court.