AZIZ AHMAD vs THE STATE
This criminal petition is directed by the petitioner Aziz Ahmad seeking post-arrest bail in case F.I.R. No. 80 dated 17-5-2003 registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 read with sections 511, 337-H(ii), 148, and 149 of the Pakistan Penal Code 1860. The core legal question involves determining whether the petitioner is entitled to post-arrest bail where the charge constitutes an attempt to commit an offense and eye-witnesses have submitted affidavits exonerating him. The Lahore High Court accepted the petition and held that since the case involves a mere attempt and eye-witness affidavits exonerate the accused, the matter falls within the scope of subsection (2) of Section 497 of the Code of Criminal Procedure 1898, warranting further inquiry into his guilt. The key principle laid down is that where an offense remains at the stage of an attempt and material on record including affidavits of eye-witnesses cast doubt on the involvement of the accused, the case calls for further inquiry under Section 497(2), making the accused a fit case for the grant of bail.
- Whether an accused charged with an attempt to commit an offense under the Offence of Zina (Enforcement of Hudood) Ordinance 1979 is entitled to further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Does the submission of affidavits by eye-witnesses exonerating the accused furnish grounds for post-arrest bail?
- Whether the petitioner is entitled to bail when the case is one of a mere attempt and the accused is a previous non-convict behind bars?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 511, Pakistan Penal Code 1860
- Section 337-H(ii), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' Aziz Ahmad, the petitioner through the instant petition seeks post-arrest bail in case F.I.R. No,80 dated 17-5-2003 under section 11 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 511, 337-H(ii)/148/149, P.P.C., registered with Police Station Daira Din Penah District Muzaffargarh.
2. Briefly the prosecution case as per F.I.R. Is that on the night between 16/17-5-2003 at about 11/12 (midnight) he along with his co-accused while variously armed had attempted to abduct Mst.
Sumaira, 15/16 years old, the maternal-granddaughter of the complainant and in the process they have also resorted to firing. Accused Nazir Ahmad alias Naja, Atta Ullah and Mushtaq Ahmad were apprehended at the spot.
3. The motive behind the occurrence is that Ashiq Hussain accused had demanded the hand of the said girl in marriage. He was refused the same and he thereafter had forged Nikahnama showing her Nikah with him and suit in respect of the same is pending in the Court.
4. It has been contended on his behalf that he has falsely been roped; in that it is a case of mere attempt and not actual commission of the offence alleged; that the incident as has been mentioned in the F.I.R. Had not taken place and this is so evident from the affidavit of the two alleged to be the eye-witnesses; and that he is behind the bars and previous non-convict.
5. Conversely, the learned State Counsel has opposed the petition on the ground that he is named in the F.I.R.; and that he along with his co-accused while variously armed had committed the above mentioned act.
6. I have carefully considered the submissions made from both the sides with the help of available record.
7. Allegedly, he along with his co-accused while variously armed had attempted to abduct the said girl but they due to the attraction of the people at the spot could not succeed in their design. There is with the petition the affidavit of Rahim Bakhsh and Ramzan, the alleged to be the eye-witnesses of the incident. They in the same have exonerated him of the charge.
8. Besides than this, it is a case of mere attempt. Hence, his case is covered under subsection (2) of section 497, Cr.P.C. Calling for further inquiry into his guilt.
9. He is behind the bars and stated to be previous non-convict. I, therefore, accept this petition and admit him to bail provided he furnishes bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Muzaffargarh/trial Court.