2005 PLP 449 (MLD)

Muhammad Iqbal, S.‑I. with police record. Petitioner Asif Iqbal through the instant petition has sought for post‑arrest bail in case F.I.R. No.431 dated 10‑8‑2004 under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 read with section 380, P.P.C. registered with Police Station Lytton Road, Lahore.

2. The facts of the case were mentioned in this Court's order dated 5‑10‑2004, recorded in Crl. Misc. No.6731‑B of 2004 titled Mst. Saima Ashraf v. The State. The same, therefore, are not repeated here.

3. It has been argued on behalf of the petitioner that the prosecution story, if at all may be believed to be true, the same makes out a case of friendship on the part of the petitioner and his co‑accused Mst. Saima Ashraf and in no way her abduction by him; that there is no direct evidence of Zina against him, that the police of its own have written his statement dated 10‑8‑2004 while he did not make any such confessional statement before them; that his co‑accused Mst. Saima Ashraf has been allowed bail mainly on the reason that there is no evidence of Zina against her and the benefit of such observation is also available to him and so his case' is open to further inquiry into his guilt; and that he is behind the bars and a previous non‑convict.

4. Conversely, learned State counsel assisted by learned counsel for the complainant has opposed the petitioner on the ground that he on 10‑8‑2004, has made statement before the police that he has indulged in Zina with his co‑accused Mst. Saima Ashraf; that his said co‑accused has also confessed in her statement before the police that they both had lived together without being married to each other; that she has also refused to get herself medically examined and so the presumption under Article 129(g)&(h) of the Qanun‑e‑Shahadat Order of 1984, would be that they had indulged in sexual intercourse wilfully amounting to Zina‑bil‑Raza; and that Mst. Saima Ashraf was mainly allowed bail on the ground of sex while no such ground is available to him

5. I have carefully considered the submissions made room both sides with the help of the available record. It has appeared from the record that Mst. Saima Ashraf had eloped with the petitioner out of illicit intimacy with him. This, if may be so, then the offence against him would be under section 16 of the aforesaid Ordinance and not under section 11 of the same. The question of application of section 11 of the Ordinance against him needs serious consideration.

6. The fact also remain that the offence under section 16 of the Ordinance is not covered under the prohibitory clause of section 497(1) Cr.P.C.

7. This has also appeared from the record that there is no direct evidence of Zina against him. It may be mentioned here that one of the grounds on which Mst. Saima Ashraf was allowed bail by this Court vide the afore‑referred order was that there was no evidence of Zina available on the record against her.

8. She no doubt has refused to get herself medically examined and this though raises presumption of Zina‑bil‑Raza against her but it is settled proposition in law that presumption, howsoever, strong may be but cannot take place of proof. While it has been stated above that no direct evidence of Zina is available on the record against them.

9. The case against the petitioner, therefore, is covered under subsection (2) of section 497, Cr.P.C calling for further inquiry into his guilt. He is stated to be behind the bars for the last about 2‑1/2 months and a previous non‑convict, which has not been controverted by the other side.

10. In these circumstances, I accept this petition and admit the petitioner 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 the learned trial Court. H.B.T./A‑310/L Bail granted.