Mst. BASHIRAN BIBI vs STATE
This matter concerns a post-arrest bail application filed by the petitioner, Mst. Bashiran Bibi, who was accused in an FIR registered under Section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. The petitioner was alleged to have assisted in the abduction of the complainant's daughter for the purpose of illicit intercourse. The core legal question was whether the petitioner, a woman, was entitled to bail given the nature of the evidence and the statutory provisions regarding bail for women. The Court held that the petitioner should be released on bail. The Court observed that the complainant's statement was based on hearsay and there was no other evidence connecting the petitioner to the crime. Furthermore, the Court emphasized that the petitioner, being a woman, fell within the protective ambit of the first proviso to Section 497 of the Code of Criminal Procedure, 1898. The Court established the principle that an accused cannot be detained indefinitely pending the recovery of an abductee, and bail should not be withheld as a form of punishment, particularly when the offense does not fall within the prohibitory clause of the relevant bail statute.
- Whether a woman accused of an offense not falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 is entitled to bail?
- Can bail be withheld as a form of punishment pending the recovery of an alleged abductee?
- Is a case based solely on hearsay evidence sufficient to deny bail to an accused?
- Section 497, Code of Criminal Procedure 1898
- Section 16, Offence of Zina (Enforcement of Hadood) Ordinance 1979
ORDER
Through this application under Section 497 Cr.P.C. the petitioner seeks bail after arrest in case FIR No,167 dated 23.6.2003 registered under Section 16 Offence of Zina (Enforcement of Hadood)
Ordinance, VII of 1979 at Police Station Sahooka District Vehari, on the statement of Hassan Mahmood.
2. Briefly stated the facts of the case are that on 27.2.2003, Hassan Mahmood complainant went outside his house in connection with a personal work and in his absence, Muhammad Irshad, Muhammad Nawaz co-accused duly armed with fire arms and Mst. Fatian Bibi alias Najma accused alongwith petitioner came to his house on a car. Muhammad Irshad and Muhammad Nawaz accused remained sitting in a car, parked on the road whereas the petitioner alongwith Mst.
Fatian Bibi alias Najma went to his house and enticed his daughter Mst. Rabia Bibi, aged about 19 years with intent that she may have illicit intercourse with the above-said accused, whereafter the accused made her to ride in a car on the point of 'fir-arms. Raja Muhammad Sharif and Malik Ishtiaq Hussain, witnessed her riding into the car by force. They tried to catch hold of the accused but they went on the car. His daughter was given in Nikali with Waseem Haider some days earlier and Rukhsati had yet to take place. He did not inform the police due to fear of insult and humiliation. He contacted the accused to return his daughter but they have refused, hence, this case.
3. Learned counsel for the petitioner contends that the petitioner is real mother of Muhammad Irshad and has been falsely involved in the present case; that the petitioner is a woman and is behind the bars for the last about seven months whereas the abductee has yet to be recovered and for the time being there is no statement on the file to connect the petitioner with the commission of the crime. It is also contended that the complainant had not seen the occurrence and his statement is based on hearsay evidence.
4. Learned state counsel opposes this application vehemently.
5. I have heard the arguments of both the learned counsel for the parties and also perused the record with due care and caution. The complainant's statement is based on hearsay and for the time being there is no other evidence to connect the petitioner with the commission of the crime.
The petitioner is a woman and her case also falls within the 1st proviso to Section 497 Cr.P.C. The petitioner cannot be kept in jail for indefinite period on the ground that the alleged abductee has not been recovered so far and bail cannot be withheld as a punishment. The offence u/S. 16 ibid does not fall within the prohibitory clause of Section 497 Cr.P.C., hence, this application is accepted and the petitioner shall be released on bail subject to her furnishing bail bonds in the sum of Rs, 1,00,000/- with two sureties each in the like amount to the satisfaction of learned Baqa/Judicial Magistrate.