1990 PLP 1048 (MLD)

In pursuance of a spy information, Chaudhry Abdul Jabbar, petitioner herein, has been arrested in case F. I. R. No. 70 registered on 18‑8‑1989 under sections 5 and 10 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) (hereinafter called as the Ordinance). Having failed to secure bail from the Courts below, the petitioner has approached this Court for the purpose.

2. Mr. Fazal Haq Abbasi, the learned counsel for the petitioner contended‑‑ (a) that the F. I. R. had been lodged after an unexplained delay of 9/10 months: (b) that in the secret information, in pursuance of which the case had been registered, one Punnu son of Zullah had been charged and that excepting the so‑called confessional statement of Mst. Irshad Begum the petitioner's name did not figure anywhere in the record; (c) that the self‑exculpatory confessional statement of Mst. Irshad Begum had not been recorded by a Court of competent jurisdiction in that it had been recorded by a Magistrate of the First Class, whose jurisdiction has been expressly excluded under section 8 of the Ordinance and finally; (d) that the confession allegedly made by Mst. Irshad Begum is also suffering from infirmity of having not been in accordance with the provisions of sections 10(2) and 16 of the Ordinance, in that, four times confession is necessary for a proof of offence of Zina. In support of his contentions enumerated at paras (c) and (d) ante, the learned counsel for the petitioner respectively made pointed reference to: Mohammad Nasir v. State P L D 1988 F S C 58 and Bakhan v. State P L D 1986 Federal Shariat Court 274.

3. Mr. Fazal Gul Khan, the learned counsel for the State on the other hand, had not seriously contested the plea of bail raised on behalf of the petitioner.

4. The petitioner has not been charged in the secret information which is the grundnorm of the prosecution case. Instead one Punnu son of Zullah has been charged by name in the said information. Prima facie the confessional statement of Mst. Irshad Begum is shown to have not been recorded by the Court of competent jurisdiction in that it has been recorded by a Magistrate. The evidentiary value of the confessional statement shall, therefore, be determined by the trial Court. There has been inordinate delay of 9/10 months in the lodging of the F. I. R.

5. In the light of what has been observed above, I am of view that there are not reasonable grounds for believing that the accused has committed the offences with which he has been charged but there are sufficient grounds for further enquiry into his guilt. The case of the petitioner, therefore, squarely falls within the purview of subsection (2) of section 497, Cr. P C.

6. In these circumstances, the petitioner is granted bail in the sum of Rs. 40,000 with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Abbottabad. N.H.Q./982/P Bail granted.