FALK SHER vs STATE
This petition for post-arrest bail arises from FIR No. 176/2003, registered under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, wherein the petitioner was accused of attempting to commit Zina. The core legal question was whether the petitioner had established a prima facie case for further inquiry, thereby entitling him to the grant of bail, despite the offence falling within the prohibitory clause. The petitioner argued that the case was registered with mala fide intent due to a prior dispute involving the complainant's husband, and questioned the plausibility of the alleged attempt given the ages of the parties. The Court held that the petitioner was entitled to bail, finding that the case required further inquiry. The Court emphasized the lack of medical evidence corroborating the complainant's allegations of physical struggle and noted the discrepancy in the ages of the parties involved. Consequently, the Court accepted the bail application, ruling that the circumstances, including the potential for mala fide registration, warranted the petitioner's release on bail pending trial.
- Does the absence of medical evidence regarding physical struggle in an alleged attempt to commit Zina constitute grounds for further inquiry?
- Can a case registered with potential mala fide intent and ulterior motives justify the grant of post-arrest bail?
- Is the age of the accused and the complainant a relevant factor in determining the plausibility of an alleged attempt to commit Zina for bail purposes?
- Section 18, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
The petitioner seeks bail after arrest in case FIR No, 176/2003, dated 16.9.2003 registered under Section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 on the application of Mst. Pathani.
2. Brief allegation against the petitioner in the FIR is that he forcibly tried to commit Zina with the complainant but on intervention of the witnesses he ran away from the spot while brandishing Sota.
3. Learned counsel for the petitioner contends that brother of petitioner namely Haqnawaz moved an application to DPO, Sahiwal for the registration of case against Ahmad Yar husband of complainant claiming that he had paid an amount of Rs, 83,000/- but when he had gone to take the said amount from Ahmad Yar, he was abducted by him. It is also contended that this application was received in the office of DPO on 15.9.2003 and on the very next day, i,e, 16.9.2003 the instant case was got registered by the complainant against the petitioner with mala fide intention and ulterior motives. It is further contended that the petitioner is aged about 60 years while the complainant is aged about 50 years and there was no chance of forcible commission of attempt for zina by the petitioner. It is also contended . that the registration of present case is with mala fide intention and ulterior motives on the part of the complainant due to previous enmity between them and the same is of further inquiry.
4. On the other hand, learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant opposes this application on the ground that the petitioner remained fugitive from justice for along period and on the application which was moved by the petitioner an FIR No, 237 was registered at the same police station, in which, the version of the petitioner has been found false. It is also contended that the offence falls within the purview of prohibitory clause.
5. I have heard the learned counsel for the parties and also perused the record. An application was moved by the brother of petitioner for his abduction and a criminal case was also registered against the complainant party in this regard, although subsequently during investigation the petitioner's version having been found false, the case has been cancelled. Even otherwise, the petitioner according to police record is aged about 55 years and the age of complainant is 40 years. Keeping in view the ages of complainant and petitioner and the circumstances of the case coupled with the absence of any medical evidence regarding marks of dragging on the person of the complainant, I am satisfied that for the present the petitioner has succeeded in making out the case of further inquiry. Hence, this application is accepted and the petitioner shall be released on bail subject to his furnishing bail bond amounting to Rs, 1,00,000/- (Rupees one lac only) with two sureties each in the like amount to the satisfaction of learned Judicial/Illaga Magistrate.