FARHAN alias PINKI vs THE STATE
This matter arises from a petition seeking post-arrest bail in case F.I.R. No.246 of 2002 registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question is whether the petitioner is entitled to post-arrest bail when he was found innocent during the police investigation and placed in Column No.2 of the challan, and where the statement of the alleged abductee recorded under Section 161 of the Code of Criminal Procedure 1898 contains no allegation of Zina against him. The Lahore High Court held that the petitioner's involvement falls prima facie within the purview of further inquiry under the law, given his exoneration in the police investigation and the lack of incriminating allegations in the victim's statement, and accordingly admitted him to bail. The key principle laid down is that where an accused is found innocent during investigation and placed in column No.2 of the challan, and the statement of the victim implicates him minimally or not at all, a case for further inquiry is made out warranting the grant of post-arrest bail.
- Whether an accused found innocent during police investigation and placed in Column No.2 of the challan is entitled to post-arrest bail?
- Does the absence of an allegation of Zina in the victim's statement under Section 161 Cr.P.C. make out a case of further inquiry for the grant of bail?
- Can post-arrest bail be granted when the trial has not yet commenced and the petitioner has been incarcerated since arrest?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
ORDER
' Petitioner seeks post-arrest bail in case F.I.R. No.246 of 2002 registered under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 at the instance of Haji Muhammad Akram, father of Mst. Shamsa, alleged abductee.
2. Briefly the facts of the case are that on 10-7-2002 when complainant was away in connection with his work and other members of the family were present in the house, at about 1-30 p.m., Akmal Butt, Shahzad Mehar brought Chand Gari there, who used to take and bring back his daughter from College, as she was a student of 2nd Year. They pretended that there is summer camp in the College and she is required to attend it. She took books and went with them but did not return till evening. When complainant reached home, his wife told him that she was taken by Akmal Butt and Shahzad Mehar on the Rickshaw. Complainant started her search, meanwhile, Muhammad Bashir, Habibulllah told him that they saw at 2-00 p.m. The abductee with Farhan (petitioner), mother of petitioner, Labnan, Akmal Butt and Shahzad going towards the - city on Rickshaw. He requested the accused to return his daughter but they have been avoiding it under one pretext or the other. He lodged the report alleging that she has been enticed away with the intention to commit Zina with her.
3. During investigation, abductee was recovered and her statement under section 161, Cr.P.C. Was recorded by the Investigating Officer. Two of the accused namely Labnan Bhatti and Samuel Bhatti were found real culprits and placed in Column No.3, whereas, remaining four accused including petitioner were found innocent and placed in Column No.2 of challan.
4. Learned counsel for the petitioner contends that petitioner was arrested .On 23-10-2002. Trial has not commenced. He was found innocent during investigation and placed in Column No.2 of thechallan. The case against petitioner falls within the purview of further inquiry.
5. Learned State counsel has opposed the bail.
6. Heard, record perused.
7.Statement of Mst. Shamsa under section 161, Cr.P.C. Has been read out. She has not made any allegation of commission of Zina against the petitioner. He was found innocent during the investigation and placed in Column No.2 of the challan. Trial has not commenced. Involvement of the petitioner in view of the police investigation and her statement that petitioner has not committed Zina with her prima facie makes out a case of further inquiry. In these circumstances, he is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of learned trial Court.