1996 PLP 643 (MLD)

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11‑‑‑Bail, grant of ‑‑‑Challan in the case had not been submitted despite lapse of a period of more than one year‑‑‑Non‑submission of challan for such a long period on one pretext or the other, was not ignorable to detain accused in jail‑‑‑Facts as disclosed in F.I.R. did not indicate that accused, despite having express knowledge of earlier marriage of lady, had enticed her away and performed Nikah with her against her consent‑‑‑In presence of sufficient scope of further inquiry into correctness of allegations against accused, he was entitled to concession of bail. Abdul Aziz Khan Niazi for Petitioner. Sajjad Hussain petitioner, an accused in a case registered against him under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 with Police Station City Mailsi vide F.I.R. No. 264/1992 had moved this application for grant of bail after refusal of the same by the learned Additional Sessions Judge, Vehari vide order dated 27‑2‑1994. The bail application bearing No. 606‑13/1993 earlier moved by the petitioner was dismissed by this Court with the observation that the petitioner after submission of challan shall be at liberty to move afresh before the learned Sessions Judge vide order dated 6‑2‑1994.

2. Learned counsel for the petitioner states that despite lapse of a period of about one year and two months the challan has not been submitted. It is stated that Mst. Kausar Perveen having enjoyed the company of Sajjad Hussain petitioner till 28th December, 1992 herself appeared and made a statement under section 164, Cr.P.C. before a Magistrate wherein she denied to have performed Nikah with Sajjad Hussain petitioner and execution of Nikanama with her free consent.

3. Learned A.A.‑G. on instructions offering explanation for delay in submission. of challan stated that during the investigation except the petitioner other accused were declared innocent and the case could not be finalized for want of reinvestigation. 4.' Having regard to the facts of the case, evidently it is a case of elopement. Mst: Kausar Parveen knowingly performing Nikah with Sajjad petitioner during subsistence of her marriage with Qaisar Abbas was a party to the commission of offence. The facts disclosed in F.I.R. do not indicate that petitioner despite having express knowledge of the earlier marriage of the lady enticed her away and performed Nikah with her against her consent hence there is much to be inquired in the circumstances to determine the question of guilt or innocence of the petitioner. There being sufficient scope of further inquiry into the correctness of the allegations, the petitioner by virtue of section 497(2), Cr.P.C. is entitled to the concession of bail. However, the non‑submission of challan for the last more than one year on one pretext or the other is not ignorable to detain the petitioner in jail. No person involved in a case should be punished for the inefficiency of police agency not to submit the challan within a reasonable time. This delay in submission of challan shall definitely further cause the delay in the conclusion of the trial for no fault on the part of the petitioner. He is, therefore, directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of A.C., Mailsi. H.B.T./S-421/L Bail granted.