MUHMMAD NASIR and anothers vs THE STATE
The petitioners sought post-arrest bail in a case registered under sections 16/10 of the Offence of Zina (Enforcement of Huddood) Ordinance, 1979. The core legal question was whether the petitioners were entitled to bail in view of the delayed reporting, the nature of the eye-witness account, the withdrawal of a jactitation of marriage suit by the alleged victim, and the prolonged incarceration without progress in the trial. The Lahore High Court held that the petitioners had made out a case for bail, considering the statutory delay in lodging the F.I.R., the conduct of the prosecution witnesses, the divergent statements of the victim, her categorical statement before the court acknowledging her marriage to petitioner No. 1 and paternity of their child, and the prolonged period of imprisonment with the trial adjourned sine die. The court laid down that where questions regarding the veracity of the victim's statements and prolonged incarceration exist, further inquiry into the petitioners' guilt is made out, warranting the grant of post-arrest bail.
- Whether prolonged incarceration without trial progress justifies the grant of post-arrest bail in offences under the Offence of Zina (Enforcement of Huddood) Ordinance, 1979?
- Does a delay of over two months in reporting the crime to the police create a ground for further inquiry under bail jurisprudence?
- Whether divergent statements made by the alleged victim regarding her marriage affect the tentative assessment of evidence at the bail stage?
- Sections 16/10, Offence of Zina (Enforcement of Huddood) Ordinance, 1979
ORDER
' Muhammad Nasir son of Falak Sher and Abdul Ghaffar son of Sikandar Ali, petitioners, have sought their post-arrest bail in case F.I.R. No,354 of 1999 registered at Police Station Malka Hans, District Pakpattan Sharif, on 21-10-1999, for offence under sections 16/10 of the Offence of Zina (Enforcement of Huddood) Ordinance, 1979.
2. According to F.I.R. Mst. Ghulam Fatima sister of the complainant, was married with one Ahmad Ali on 19-4-1999. However, Mst. Ghulam Fatima came to the house of the complainant/her brother and started living with him. On 2-8-1999 at about 8-00 p.m. Mst. Haleema Bibi sister of Muhammad Nasir/petitioner No,1, along with Mst. Ghulam Fatima went outside of the house to ease herself and Mst. Ghulam Fatima was forcibly abducted by Muhammad Nasir and Abdul Ghaffar, petitioners along with other accused. It was further stated in the F.I.R. That on 15-8-1999 Ghulam Muhammad and Noor Muhammad P.W.s saw Muhammad Nasir/petitioner No,1 committing Zina-Bil-Jabr with Mst. Ghulam Fatima in a house through a hole in the door. It is added that on 28-9-1999 Mst.
Ghulam Fatima sister of the complainant came back to the house and the matter was reported to the police.
3. Admittedly, petitioner No,1 Muhammad Nasir for the last two years and Abdul Ghaffar petitioner No,2 for the last one ' year, are behind the bars and the trial of the case has been adjourned sine die.
4. The learned counsel for the petitioners has stated that no offence has been committed by the petitioners, as Mst. Ghulam Fatima, the alleged victim, in fact married with Muhammad Nasir/petitioner No 1. The learned counsel has also referred to annexure-C of this petition, which shows that Mst. Ghulam Fatima filed a suit for jactitation of marriage against Muhammad Nasir alias Naseer petitioner No,1 in the Court of Family Judge, Sahiwal. The afore referred case was decided vide judgment dated 31-10-2001 and according to para-5 of the said judgment Mst.
Ghulam Fatima moved an application for withdrawal of the suit on the ground that her relatives had forced her to file the said suit. The application for withdrawal of the suit filed by Mst. Ghulam Fatima was allowed by the learned Judge Family Court and the suit was dismissed accordingly.
5. Conversely, the learned counsel for the complainant has vehemently argued that the case is under trial and that during her statement before the trial Court Mst. Ghulam Fatima has supported the prosecution case.
6. The learned counsel appearing on behalf of the State has followed the line of arguments of the learned counsel for the complainant.
7. I have heard the learned counsel for the parties and have gone through the record. It has been noticed that the matter was reported to the police after a delay of more than two months, when Mst. Ghtilam Fatima allegedly returned to the house of the complainant. Surprisingly two P. Ws including Ghulam Muhammad, brother of Mst. Ghulam Fatima, allegedly saw committing Zina by Muhammad Nasir/petitioner No,1 on 15-8-1999 with his own eyes but he did not report the matter to the public. Mst. Ghulam Fatima had been making divergent statements before different Courts. She is present before this Court today and has categorically stated that she was wife of Muhammad Nasir/petitioner No,1, who was father of their female child namely Nourin. Muhammad Nasir/petitioner No,1 is rotting in Jail for the last two years while Abdul Ghaffar/petitioner No,2, against whom no allegation of commission of Zina has been levelled, is behind the bars for the last one year.
8. In these circumstances, I am inclined to allow this petition and admit the petitioners to bail, subject to their tendering bail bonds in the sum of Rs, Five thousand, each, with one surety each in the like amount to the satisfaction of the trial Court.