2007 PLP 252 (YLR)

Laws Cited

Representation

• -----S. 497(5)-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, refusal to cancel---Delay of two months and ten days in lodging F.I.R., was not plausibly explained---Petitioner/complainant, after lodging F.I.R. had never joined investigation---Alleged victim had never made any statement before Investigating Agency in connection with present case---Petitioner/complainant had been advancing contradictory versions before different Police Authorities at different stages---Criminal case had already been registered against petitioner/complainant at the instance of accused party prior to lodging of F.I.R. by complainant against accused---Assertion of counsel for respondent/accused regarding his mala fide implication in the present case, appeared to be true in such back ground---Nothing was to be recovered from the possession of accused and it was not disputed that he had joined investigation of the case when same was in progress---Challan had already been submitted before the Court after completion of investigation---Accused had been admitted to pre-arrest bail about nine months ago and there was no allegation regarding any misuse or abuse of concession of bail by him---Consideration for grant of bail and those for its cancellation were entirely different---Jurisdiction exercised by the Trial Court in granting bail to respondent/accused could not be interfered with.
• Ch. Muhammad Abdus Saleem for Petitioner.
• Ch. Ahmed Khan Gondal for Respondent No.1.
• 2. It has been argued by the learned counsel for the petitioner that sufficient incriminating material was available on the record of investigation prima facie establishing respondent No.1's involvement in the alleged offence and therefore, the learned Additional Sessions Judge, Mandi Bahauddin was not justified in admitting respondent No.1 to pre-arrest bail. As against that the learned counsel for respondent No.1 as well as the learned counsel for the State have supported the order passed by the learned Additional Sessions Judge, Mandi Bahauddin on 4-10-2005 and have maintained that there is no occasion for this Court to cancel respondent No.1's bail at such a stage.
• 3. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed by me that the F.I.R. in this case had been lodged with a delay of two months and ten days and apparently no plausible explanation for that delay had been advanced by the petitioner-complainant in the F.I.R. The order passed by the learned Additional Sessions Judge, Mandi Bahauddin on 4-10-2005 shows that after lodging the F.I.R. the complainant had never joined the investigation of this case and the police officer present with the record has confirmed this factual aspect of the matter before me today. The above-mentioned order passed by the learned Additional Sessions Judge, Mandi Bahauddin further shows that till the passage of the order dated 4-10-2005 admitting respondent No. 1 to pre-arrest bail the alleged victim namely Mst. Fauzia had never made any statement before the investigating agency in connection with the present criminal case. This aspect of the matter has already been confirmed by the police officer present with the record and he has informed me that the alleged victim had got her statement recorded in connection with the present criminal case for the first time on 19-11-2005, i.e. after about four and a half months of the alleged occurrence and after about one and a half months of admission of respondent No.1 to pre-arrest bail by the learned Additional Sessions Judge, Mandi Bahauddin. The record of this case clearly shows that the petitioner-complainant has been advancing contradictory versions before different police authorities at different stages. The record also shows that a criminal case had already been registered against the present petitioner-complainant at the instance of the accused party of the present case prior to lodging of the F.I.R. by him against respondent No.1 herein in the present case and in that backdrop the assertion of the learned counsel for respondent No.1 regarding mala fide implication of respondent No.1 in the present case appears to be an assertion which could well be true. The criminal case in hand is one of an attempt only which attempt had remained abortive. Nothing is to be recovered from the possession of respondent No.1 and it is not disputed that he had joined the investigation of this case when the same was in progress. After completion of the investigation a challan has already been submitted before the learned trial Court. This Court is generally slow in cancelling an accused person's bail at such a stage of a criminal case. It may not be out of place to mention here that respondent No.1 had been admitted to pre-arrest bail in this case by the learned Additional Sessions Judge, Mandi Bahauddin about nine months ago and during his arguments before this Court today the learned counsel for the petitioner-complainant has levelled no allegation regarding any misuse or abuse of the concession of bail by respondent No.1. It is trite that considerations for grant of bail and those for its cancellation are entirely different.

Headnotes / Summary

Judgment & Decree