UMAR HAYAT vs THE STATE
This matter concerns a bail petition filed by the petitioner, Umar Hayat, seeking post-arrest bail in a criminal case involving allegations of abduction. The core legal question was whether the petitioner was entitled to bail given that the alleged abductee had not been recovered despite the petitioner remaining on physical remand for fourteen days, and whether the offence fell within the prohibitory clause of Section 497, Code of Criminal Procedure 1898. The Court observed that four other co-accused had already been granted bail by the trial court. Furthermore, the Court noted that the failure of the Investigating Officer to recover the abductee, combined with the nature of the offence, rendered the petitioner's continued detention unnecessary. Consequently, the Court accepted the petition and granted bail to the petitioner, subject to furnishing bail bonds. The Court established the principle that where the recovery of an alleged abductee remains outstanding despite a significant period of physical remand, and co-accused have been granted relief, the continued detention of the petitioner is not justified, provided that the State or complainant retains the right to seek bail cancellation if the abductee is recovered and implicates the accused.
- Does the failure to recover an alleged abductee during physical remand justify the grant of bail to an accused?
- Can bail be granted to an accused when co-accused in the same case have already been released on bail?
- Is the State entitled to seek cancellation of bail if the alleged abductee is recovered and provides incriminating evidence after the bail is granted?
- Section 497(1), Code of Criminal Procedure 1898
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
' Learned counsel for the petitioner submits that offence does not fall within the ambit of section 497(1), Cr.P.C., that petitioner was arrested in this case on 23-1-2002, that he remained on physical remand but the alleged abductee was not recovered. He has relied upon 1982 PCr.LJ 1192; 1984 PCr.LJ 675; KLR 1998 & 1999 36 & 534.
2. On the other hand, learned counsel for the State submits that challan has been submitted in the trial Court, that petitioner has been found guilty, and that in fact it is not a case of section 16 but 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
3. I have heard learned counsel for the parties. Case was registered against five accused, four have been allowed bail by the learned Additional Sessions Judge. As far as, present petitioner is concerned, he remained on physical remand for 14 days but the abductee was not recovered and for the reason best known to the Investigating Officer that he did not effect the recovery of abductee which is still not available. No useful purpose can be served by detaining the present petitioner further, even offence alleged against the petitioner does not fall within the ambit of section 497(1), Cr.P.C., therefore, this petition is accepted. Petitioner is allowed bail subject to furnishing bail bonds to the tune of Rs,50,000 (Rupees fifty thousand) with one surety in the like- amount to the satisfaction of learned trial Court. However, if and when the alleged abductee is recovered and she levelled allegation of Zina against the petitioner then either the State or the complainant can move, for cancellation of bail.