MUHAMMAD NUSRULLAH vs THE STATE
The petitioner sought post-arrest bail in a case registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question was whether the petitioner was entitled to post-arrest bail when caught in flagrante delicto for an offence falling within the prohibitory clause, and whether his case was at par with a co-accused who had been granted bail. The Lahore High Court dismissed the petition, holding that the petitioner was found involved in a heinous offence against society and Hadood Allah falling within the prohibitory clause, and that he failed to make out a case for further inquiry or parity with the female co-accused whose bail fell under the first proviso to section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that accused persons involved in heinous offences falling within the prohibitory clause, where direct eyewitness testimony places them at the crime scene, are not entitled to discretionary concessions of bail, and parity cannot be claimed when the co-accused's relief is based on statutory exceptions applicable to women.
- Whether an accused caught committing Zina can be granted post-arrest bail when the offence falls within the prohibitory clause?
- Does the grant of bail to a female co-accused under the first proviso to section 497 of the Code of Criminal Procedure 1898 entitle a male co-accused to bail on the ground of parity?
- Are oral statements of eyewitnesses who observed the commission of Zina sufficient for tentative assessment at the bail stage?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
' The petitioner seeks post-arrest bail in case F.I.R. No,30 of 2003, dated 28-3-2003 registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Chobarah, District Layya on the statement of Muhammad Sadiq complainant.
2. The brief facts as per F.I.R. Are that on 27-3-2003 at about 10-30 p.m. (in the night) the complainant alongwith two witnesses was sitting on cots in front of his house situate in Chak No,299/TDA. After few minutes they saw Mst. Zahida Perveen co-accused resident of their Chak entering the Baithak of the petitioner, who did not return back for a considerable period. According to the complainant they suspecting some foulplay went in front of the Baithak of the petitioner and while peeping through the window of the Baithak in the light of bulb saw both Muhammad Nasrullah petitioner and Mst. Zahida Parveen co-accused in naked condition while committing Zina with each other on a cot. They knocked at the door whereupon both the accused while dressing up came out of the Baithak and beseeched the complainant and the witnesses, but they were overpowered and produced before the police on its arrival at the place of occurrence having been informed through telephone. Hence this case was registered.
3. Learned counsel for the petitioner contends that it is a false case which has been got registered with mala fide intention; that the witnesses have themselves, if the allegation is admitted as correct for the sake of arguments violated the Injunctions of Islam and refers to his pleadings in ground (c) of this application, hence they cannot be believed; that oral statements of the witnesses are not sufficient to connect the petitioner with the commission of the crime, and that Mst. Zahida Parveen co-accused has already been admitted to bail by the learned Additional Sessions Judge, Layya and the petitioner is also entitled to the same treatment.
4. On the other hand learned counsel appearing on behalf of the State has opposed this application on the ground that the petitioner is involved in an offence falling within the prohibitory clause and is not entitled to the grant of bail by this Court.
5. I have heard the learned counsel for the parties and perused the record with their assistance.
The petitioner was found indulged in the commission of Zina with Mst. Zahida Parveen co-accused in his Baithak in the night time. No specific mala fide has been alleged against the witnesses for their false involvement in the present case. There is no denial to the moral values pointed out by learned counsel for the petitioner in ground (c) of this petition, but at the same time it cannot be ignored that Allah Almighty has declared commission of intercourse between men and women not united in marriage an offence and to prove the same the witnesses are required who would have seen them in such a position with their own eyes, or the accused may confess their guilt.
Commission of Zina is an offence not only against the society but also against the Hadood Allah.
6. It may be observed that when Iv1st. Zahida Parveen resident of the same village had entered the Baithak of the petitioner in the night time and did not return for a considerable period, the P.Ws.
Being residents of the same village showing that they were not related with each other suspected some foulplay cannot be said to be out of mind. We have to follow the Injunction of Islam as a whole and not in piecemeal to suit for the grant of concession. Islam even does not permit free association of men and women. It is basic principle of law that one who seeks equity must do equity and the accused involved in such type of heinous offences are not entitled to any concession. The offence against the petitioner falls within the prohibitory clause and he has failed to make out a case of further inquiry. The case of the petitioner is not at par with his co-accused Mst. Zahida Parveen as she has been granted bail being a woman and due to tender age, whose case falls within 1st proviso to section 497, Cr.P C'.
7. For the foregoing reasons, I do not find any merit in this petition which is dismissed. However, it is clarified that the observations made above are of tentative assessment and will not prejudice the case of either party at the trial#