FAREED BAKHSH vs STATE
This petition concerns a post-arrest bail application filed by the petitioner, Fareed Bakhsh, who was charged under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question was whether the petitioner was entitled to bail given the conflicting evidence regarding the alleged abduction and the existence of a disputed nikahnama. The petitioner argued that the alleged abductee was his legally wedded wife and that co-accused had been declared innocent by the police. The court observed that while the abductee subsequently alleged coercion in her statement under Section 164 of the Code of Criminal Procedure 1898, there existed a contradictory affidavit from the same individual asserting her age and willingness to marry the petitioner. Additionally, witnesses named in the FIR denied knowledge of the occurrence. The court held that the case against the petitioner warranted further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the court granted bail, establishing the principle that where prosecution evidence is contradicted by affidavits and witness statements, the case falls within the scope of further inquiry.
- Does a dispute regarding the validity of a nikahnama and conflicting statements by the alleged abductee constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can bail be granted when witnesses named in the FIR deny knowledge of the alleged occurrence?
- Is a case of further inquiry established when the police declare co-accused innocent?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
Through this petition the petitioner seeks his post arrest bail in case FIR No, 182 dated 7.8.2003 registered under Section 11 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station Kot Mithan Rajanpur.
2. Learned counsel appearing on behalf of the petitioner contends that petitioner is innocent and alleged abductee namely Mst. Rukhsana is legally wedded wife of the petitioner; that co-accused of the petitioner Munir Ahmad had already been granted bail by the Court; that all the co-accused of the petitioner has also been declared innocent by the police which falsifies the prosecution case as narrated in the FIR. Lastly submits that the nikahnama of the abductee with the petitioner is admitted but now the said abductee alleges that she was forced to sign the nikahnama and thereafter she had filed a suit for justification of marriage which is pending adjudication before the Court of competent jurisdiction.
3. Conversely learned counsel for the State has strongly opposed the grant of bail.
4. I have heard the learned counsel for the parties and also perused the record carefully. The factum of nikahnama dated 7.8.2003 is admitted but subsequently the alleged abductee in her statement u/S. 164 Cr.P.C. had alleged that she was forced to sign nikahnama. The genuineness or otherwise of the same would be determined by the trial Court in the civil proceeding pending before the Court of competent jurisdiction. It has also been noticed that there is affidavit of the same lady duly sworn wherein she had categorically stated that she is about 17 years of age and suijuris and wants to marry with her will and with her own choice, the petitioner Ghulam Farid. There are affidavits of the two witnesses namely Ghulam Asghar and Ghulam Shabbir who were nominated in the FIR and stated that they have never seen any occurrence nor they had told anything with regard to the abduction of the alleged abductee. Their names had been included in the FIR without their knowledge. Keeping in view all these facts, I am of the view that the case against the petitioner is that of further inquiry and falls within the ambit of sub-section (2) of Section 497 Cr.P.C. entitling him to be released on bail. Accordingly I accept this petition and admit'the petitioner to bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (one lac) with one surety to the satisfaction of the learned trial Court.