2004 PLP 307 (YLR)

(c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑Ss.497/498‑‑‑Bail‑‑‑Benefit of doubt‑‑ Principle‑‑‑Benefit of doubt is to go to the accused even at bail stage. Mian Arshad Latif for Petitioner. Tariq Zulfiqar Ahmed Ch. for the Complainant. Anwar‑ul‑Haq for the State. Through this petition, Mst. Salma Bibi, seeks post‑arrest bail being one of the accused of F.I.R. No.83 of 2003 registered under sections 10(2)/11 of Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 registered with Police Station, Saddar, Arifwala.

2. Brief facts forming background of the case are that Muhammad Naeem, complainant reported to the police station that during the night between 20/21‑2‑2003 at about 12‑00 midnight, when he was asleep alongwith his family and cousin Salma Bibi, who was also sleeping there as she had come there as a guest. When he woke up suddenly and saw Abdul Kareem, Anwar, Sarwar and Muhammad Yousaf armed with fire‑arm were present. He tried to get up from his cot, but Abdul Kareem and Anwar pointed upon him with threat to kill him in case of raising any alarm; they took him and other family members to a room and confined thern there; thereafter they abducted Mst. Salma Bibi at gun point in a car. Further stated Mst. Salma Bibi was abducted to subject her Zina‑bil‑Jabr. During investigation, the alleged abductee has been roped in as accused person.

3. The learned counsel for petitioner states that the petitioner has contracted marriage with Qaisar Mahmood, alleged accused on 31‑10‑2002 and thus she was never abducted by anybody. Further argued that all the accused persons mentioned in F.I.R. except Qaisar Mahmood have been found‑innocent and even the prosecution story has been disbelieved by the Investigating Officer, D.S.P., Headquarter, Arifwala. Further argued that the petitioner admittedly being of marriageable age has contracted marriage with Qaisar Mahmood with her free will, hence she has not committed any offence.

4. On the other hand, the learned counsel appearing on behalf of complainant, has argued that the petitioner's earlier bail petition (Criminal Miscellaneous No.992‑B of 2003) has been dismissed as withdrawn from this Court vide order dated 5‑6‑2003, hence the second application is not maintainable on the same grounds as no fresh ground has been made out through this application, it is therefore, liable to be dismissed. In this respect the learned counsel has referred the case‑law reported as PLD 1996 SC

173. Further argued that the challan in this case has been submitted and the accused is facing trial and it is fixed for evidence of prosecution for 18‑11‑2003 and the offence of which the accused charged falls within prohibitory clause, therefore, she is not entitled to concession of bail.

5. The learned counsel appearing on behalf of State has adopted the arguments advanced by the counsel for complainant.

6. Heard. Record perused.

7. Regarding maintainability of second bail petition suffice it to say that earlier bail petition was dismissed as withdrawn for the time being, hence this second petition is maintainable. To hold this view reliance has been placed on the case Ali Hassan v. State 2001 SCMR 1047. Furthermore, all the accused named in F.I.R. except Qaisar Mahmood have been found innocent and prosecution story regarding alleged abduction of the petitioner has not been believed by the Investigating Officer i.e. D.S.P., Headquarter vide his report dated 25‑6‑2003, while the earlier bail petition was dismissed as withdrawn on 5‑6‑2003, hence there is fresh grounds for moving this bail petition as well. The petitioner as well as her co‑accused namely Qaisar Mahmood have been throughout claiming that they have contracted marriage with each other on 31‑10‑2002, hence the alleged charge of offence under section 10(2), prima facie is not made out. It is well‑established law that the benefit of doubt is to go to the accused, even at bait stage. . The learned counsel for petitioner has produced a copy of application for pre- arrest bail filed by Qaisar Mahmood, which is duly supported with his affidavit, wherein co‑accused has also categorically stated that both the accused is legally wedded couple. In view thereof, the case of petitioner is that of further inquiry. She is, therefore, admitted to bail in case F.I.R. No.83 of 2003 registered under sections 10(2)/11 of Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 with Police Station Saddar, Arifwala provided she furnishes bail bond in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of trial Court. N.H.Q./S‑791/L Bail allowed.