1997 PLP 2975 (MLD)

Shah Zaman v. The State PLD 1994 SC 65 ref. Mian Amir Ahmad for Petitioner. Mohsin Raza Joya for the State. Heard.

2. Petitioner alongwith his mother and sister is facing trial of a case under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, registered at Police Station City Ahmedpur, East vide F.I.R. No.377 of 1996 dated 24‑12‑1996, allegedly for abduction of Mst. Aliya, daughter of complainant, in order to subject her to illicit intercourse.

3. Concession, asked for, has been claimed on the pleas that there is a delay of about 4 days in lodging the F.I.R. without any plausible explanation; the petitioner remained in police custody on physical remand for about 14 days, but, no recovery has yet been effected from him, he is in judicial lock‑up for the last 3‑1/2 months and is not a hardened criminal and no more required by police for enquiry, complainant herself is not an eye‑witness; prosecution witnesses are her tenants and in any event, alleged abductee has not been recovered from the petitioner, case falls within the ambit of "further inquiry. Reliance has been placed upon Muhammad Hussain v. The State (1995 PCr.LJ 488), Nazir v. State (1984 MLD 1582) and Ghulam Ali v. The State (1989 PCr.LJ. 667), in support of the contentions, reiterating aforesaid pleas.

4. It has been opposed and resisted with the assertions that abductee is of tender age, petitioner is sufficiently connected with the crime and the same falls within prohibitory clause of section 497, Cr.P.C.

5. According to subsection (2) of section 497, Cr.P.C. where there are reasonable grounds for believing that the accused has committed a non‑bailable offence, but there, are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail. While interpreting above provisions in the case of Arbab Ali v. Khamiso and others (1985 SCMR 195), it was held by august Supreme Court that bail can be allowed in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497, Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused, but only, on the condition when the Public Officer or the Court at any stage of investigation, inquiry or trial, as the case may, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence. Without such finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. In Azmat Ullah Khan v. Bazi Khan and another (PLD 1988 SC 621), illuminating observations are to the effect "mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under section 497(2), Cr.P.C. Such a question also came up for, examination before learned Division Bench in the case of The State v. Aziz alias Abdul Aziz (PLD 1985 Tsar. 27). It was held in this case that the question of further inquiry would only arise if the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non‑bailable offence. On the other hand, if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence, there is no question to Court holding a further inquiry into the matter for the purpose of grant or refusal of bail".

6. In the instant case, prosecution is seemingly equipped with sufficient material in different shapes to connect the petitioner with the commission of offence with which he stands charged. Tentative assessment of the same, at this juncture, does not lend any support to the cause of petitioner as reasonable grounds exist for believing that he has committed a non‑bailable offence of the nature, which, falls within prohibitory clause.

7. Be that as it may, provisions of section 497(2), Cr.P.C. are neither attracted nor entailed to the facts of case against the petitioner nor the same can come into play or pressed into service. As enunciated in Shah Zaman v. The State (PLD 1994 SC 65), "now what will constitute a sufficient ground for further inquiry, would depend upon peculiar facts of the case and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can be imagined would not take a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or lead to show that accused is not guilty of the offence with which he is charged." Same is totally lacking in the instant case, which appears to be of great high‑handedness, allegedly, shown by the petitioner.

8. In these circumstances, he cannot be taken to be entitled to the concession asked for on the pleas including of "further inquiry" advanced on his behalf. Application, accordingly, merits rejection and is hereby turned down. N.H.Q./N‑48/L??????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.