KHAN MUHAMMAD vs THE STATE
This matter comes before the Lahore High Court through a petition filed by Khan Muhammad seeking post-arrest bail in case F.I.R. No. 345 registered on 7-10-2001 at Police Station Gagoo, District Vehari, under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question concerns whether the petitioner is entitled to post-arrest bail given the delay in lodging the F.I.R., the tentative nature of the allegations regarding forcible abduction, the secondary role attributed to the petitioner, and the police opinion finding the accused innocent and consigning the case as untraced. The court held that the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Code of Criminal Procedure 1898, as an accused person cannot be held as a hostage for the recovery of an alleged abductee from co-accused. The petition was consequently allowed, admitting the petitioner to bail. The key principle laid down is that where the role attributed is secondary, the F.I.R. shows delay and doubtful applicability of the penal section, and the police report finds the accused innocent, a case for further inquiry under section 497(2) Cr.P.C. is made out.
- Whether post-arrest bail should be granted when an F.I.R. is lodged with a significant delay and the allegations cast doubt on the applicability of the penal provision?
- Can an accused person be held as a hostage for the recovery of an alleged abductee from co-accused?
- Does a police opinion finding the accused innocent and consigning the file as untraced make out a case for further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Through this petition Khan Muhammad petitioner has sought post-arrest bail in case F.I.R. No,345 registered at Police Station Gagoo, District Vehari on 7-10-2001 for an offence under section 11 of the Offence of Zind (Enforcement of Hudood) Ordinance, 1979.
2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. In this case had been lodged with a delay of fifteen days. Without prejudice to the prosecution's case it may be tentatively observed for the limited purposes of the present petition that the story contained in the F.I.R. Apparently does not disclose forcible abduction of Mst.
Irshad Bibi and, therefore, it is doubtful whether the allegations in the F.I.R. Would attract the provisions of section 11 of the Ordinance of 1979. The only allegation against the petitioner in this case is that the alleged abductee namely Mst. Irshad Bibi had stayed at the petitioner house for one night before going away with others. In these circumstances 'the`'role attributed to the petitioner in the whole transaction appears to be secondary in nature. It is not disputed that the alleged abductee had not been recovered from - the petitioner's custody. Through an opinion recorded in the case-diary No,31, dated 22-12-2001 the Investigating Officer of this case had opined that the petitioner is innocent. The learned counsel for the State has pointed out that after finding all the accused persons in this case to be innocent the file of this case has already been consigned to the record by the police by considering it as an untraced case. It may be true that the alleged abductee has not so far been recovered from the petitioner's co-accused but at the same time it is equally true that an accused person cannot be held as a hostage for recovery of an alleged abductee from some other accused persons.
3. For what has been observed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section '497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.