2002 PLP 712 (MLD)

Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585 reef. Khalid Aseer Chaudhry for Petitioner. Latif Sheikh for the State. Date of hearing: 4th December; 2001. Through this petition Munir petitioner has sought post-arrest bait in case F.I.R. No.464 registered at Police Station Sadar, Chiniot, District Jhang on 5.-10-1994 for offences undet sections 395, P.P.C. and 10/ 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. in this case had been lodged with a delay of nine days and even in that belated F.I.R. the present petitioner had not been nominated as one of the perpetrators of the offences in question. The occurrence in this case had allegedly taken f place way back in the year 1994 and the petitioner's name had surfaced in this case for the first time through a supplementary statement made by Muzaffar Tarar complainant on 23-9-1997 wherein he had stated that two co-accused of the present petitioner had confessed their guilt before him and had also simultaneously implicated the present, petitioner in the alleged offences. On the basis of the said supplementary statement of the complainant the present petitioner had been arrested by the local police on 24-9-1997. Still later the alleged abductee namely Mst. Sughran Bibi made a statement before the Magistrate under section 164, Cr.P.C. on 18-2-2001 wherein she implicated the present petitioner alongwith his co accused in the alleged offences. A reading of the said statement made by the alleged abductee shows that th4 petitioner was not the principal accused in the whole episode and is involvement, according to the alleged abductee, was secondary in nature.

3. This Court has indeed been shocked to learn that the case in hand pertains to the year 1994, the name of the petitioner has surfaced in this case for the first time in the year 1997, the petitioner had been arrested -in connection with this case in the year 1997, the alleged abductee had appeared before the police and the Magistrate in the year 2001 and still the trial of the petitioner has not been concluded and despite two directions having been issued by this Court through independent bail applications submitted by the present petitioner earlierr on the petitioner's trial has unfortunately seen no significant progress.

4. The facts of this case show that initially the petitioner was not nominated in the F.(.R. and he had been implicated in this case for the first time after about three years of the occurrence. Such implication was on the basis of some statements made by co-accused of the pr-petitioner before the complainant.' The direct implication of the petitioner became available in this case after about seven years of the alleged occurrence through the statement made by the alleged abductee under section 164, Cr.P.C. As already observed above the said statement of the alleged abductee shows that the role of the petitioner is secondary in nature to that attributed to Zafar Iqbal co-accused. The alleged abductee had /been living with the co-accused for about seven years after her alleged abduction and during such stay she 'had also given birth to some children. She had apparently raised no protest any stage during this while. In that backdrop the allegations levelled by the alleged abductee against the present petitioner at such a belated stage do make the case against the petitioner to be one of further inquiry into his guilt.

5. At this stage the learned counsel for the State has informed that the trial of the petitioner has commenced and, therefore, it may not be appropriate to release the petitioner on bail at such a stage." I have, however, remained unable to subscribe to this submission of the learned counsel for the State. It has already been observed above that the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. It is settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be granted to such an accused person as of right and not by way of grace or concession, bail is sometimes refused to an accused person on the consideration of commencement of a trial but that consideration is based purely upon propriety. It goes without saying that whenever question of propriety is confronted with a question of right the latter must prevail. Even otherwise it had been held by the Hon'ble Supreme, Court of Pakistan in the case of Muhammad Ismail v. Muhammad Rafiq and another (PLD 1989 SC 585) that commencement of a trial poses no insurmountable hurdle in the way of bail where an accused person succeeds in making out a case of further inquiry into his guilt.

6. For what has been discussed above this petition as allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.1,00,000 (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned Trial Court. H.B.T./N-152/L Bail granted.