1999 PLP 1290 (MLD)

S. 497

Bail, grant of

Procedure

Bail application had to be disposed of on the basis of material collected during investigation after registration of F.I.R. which was lodged by complainant before Police to set the law in motion

Bail application was not to be disposed of on the basis of the recitals of F.I.R. but with in framework of S.497, Cr.P.C. Javed Amin Nayyer for Petitioner. Maqsood Ahmad Khan for the State. Date of hearing: 22nd June, 1998 Muhammad Akram complainant got recorded F.I.R. No.36, dated 20-1-1998 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 380 of Pakistan Penal Code at Police Station South Cantt., Lahore with the allegation that on 15-1-1998 his Mohallah Dar Muhammad Munir enticed away his wife Mst. Hanifan Bibi and his minor daughter Mst. Iram who were seen -by Sharine, Kaka and Nikka P.Ws. alongwith Muhammad Munir accused and his mother Mst. Hamidan. He, alleged that his wife took away gold ornaments weighing four tolas and cash amount of Rs.10,

000. The law was set in motion. The investigation was conducted. On 3-2-1998 Munir Ahmad petitioner-accused was arrested. On 4-2-1998 the abductee Mst. Hanifan Bibi alongwith minor daughter Mst. Iram was recovered. On 4-2-1998 Mst. Hanifan was examined by the Investigating Officer under section 161 of the Criminal Procedure Code when she deposed that she was married to her cousin Muhammad Akram out of whom she gave birth to her daughter Mst. Iram aged 2-1/2 years, that there were frequent disputes between the spouses, that on 15-1-1998 Muhammad Munir took her to the Darbar of Hazrat Data Sahib Lahore to pay the regards, that on getting the chance she went to her parents house in Mauza Lalliani from where she was recovered, that she did not take away any ornament or cash amount with her and that Munir Ahmad did not commit Zina with her.

2. Munir Ahmad petitioner made the application for his admission to bail which has been dismissed by the learned Additional Sessions Judge Lahore with the reasoning that his name is mentioned in the F.I.R. and that he has committed an immoral Offence. Munir Ahmad petitioner has filed this petition before this Court to try his luck to be admitted to bail.

3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. The contentions of the learned counsel for the petitioner-accused are that the statement of Mst. Hanifan Bibi recorded on 4-2-1998 by the police has made out that she did not take away the ornaments and the cash amount and that Munir Ahmad did not commit fornication with her. He added that there were routine quarrels between the spouses and that Mst. Hanifan Bibi went to the Darbar of Hazrat Data Sahib Lahore alongwith Munir Ahmad to pay her regards. According to him it is not a case under Article I 1 or under Article 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. On the contrary, learned State counsel could not meet the aforesaid assertions.

4. At the very out set, I would express that it is not a case, prima facie, attracting section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as Mst. Hanifan Bibi is a married lady. At the best, the police could insert section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which means that the S.H.O., Police Station South Cantt., Lahore is not aware of the statutory law of the country in the matter. With this passing remark, I would express that it is a case of admission of Munir Ahmad petitioner-accused to bail. In this regard suffice is to express that the statement of Mst. Hanifan Bibi alleged abductee has to steel the eminence. She went to the Darbar of Hazrat Data Sahib Lahore alongwith Munir Ahmad accused and from there she went to the house of her parents in Mauza Lalliani District Kasur from where she was recovered. It is a matter of common knowledge that an unhappy wife has to seek protection in the house of her parents. According to her she did not remove the ornaments and the cash amount. She has not been treated as the accused of the case. Rather she has been examined under section 161 of the Code of Criminal Procedure as a prosecution witness. express that in the circumstances, it would be instructive to express for the guidance of the learned Additional Sessions Judge Lahore that bail application has to be disposed of on the basis of the material collected during the investigation after the registration E of the First Information Report which is lodged by the complainant before the police to set the law in motion. If the bail application is to be disposed of on the basis of the recitals of the F.I.R. then I make bold in expressing that no person would be able to save his skin. The bail application has to be disposed of within the frame work of section 497 of the Code of Criminal Procedure. Viewed from the aforesaid perspective it can safely be expressed that the involvement of Munir Ahmad petitioner-accused is a question of further inquiry. As such, it is a case of admission of Munir Ahmad petitioner-accused to bail than to retain him in Jail.

5. For what has been said above, I accept this application and admit Munir Ahmad petitioner-accused to bail in the sum of Rs.25,000 (twenty five thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judges, Lahore with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. H.B.T./M-70/L Bail granted.