2006 PLP 99 (YLR)

M. BILAL KHAN, J.

Sang Ullah son of Muhammad Tufail, the petitioner, seeks .post arrest bail in case F.I.R. No.113 of 2004 dated 21-2-2004, registered at Police Station, Chak Jhumra, District Faisalabad for offence under section 324, P.P.C. which was later on amended to section 302, P.P.C. read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.

2. The case of the prosecution as it unfolded in the F.I.R. registered at the instance of Muhammad Yousaf son of Bashir Ahmad was that he had married Mst. Najma Bibi deceased and from the said wedlock he has got four sons and four daughters; that Mst. Najma Bibi had established illicit liaison with the petitioner; Sana Ullah (petitioner) and Mst. Najma Bibi forcibly made him to affix his thumb impression on a Talaqnama and Mst. Najma went away to her parents in District Toba Tek Singh; thereafter on account of intervention of relatives and other respectables of the area a Punchayat was convened and the Talaqnama which had forcibly been obtained was burnt and it was agreed that the complainant would live with his in-laws at Toba Tek Singh; Mst. Najma Bibi continued her illicit relationship with Sana Ullah; on 14-2-2004 Mst. Najma Bibi with her two-year-old daughter Muqaddas proceeded to see her elder daughter Nazia who was employed at Faisalabad in the house of Haji Tufail; when she did not come back after two /three days the complainant went to Faisalabad and found out that on 14-2-2004 Parvaiz son of Zafar Iqbal and Rasheed son of Allah Rakha had seen Najma Bibi and her daughter Muqaddas with Sana Ullah. petitioner boarding a Rickshaw; on inquiry it was revealed that Sana Ullah was also missing from his house for a number of days; the complainant kept on looking for his wife and finally came to know that she had been admitted in Allied Hospital Faisalabad; Mst. Najma Bibi informed him that she had gone to Salarwala on the asking of Sana Ullah where he took her to a residential house and committed Zina with her during the night. According to the complainant Najma Bibi also informed him that after commission of Zina an altercation had taken place whereupon Sana Ullah sprinkled kerosene oil from a lantern and set her ablaze and thereafter he fled away from the scene; she also informed him that the persons present there put out the fire by throwing water and took her to Dr. Wasim at Salarwala for her treatment from where a God-fearing person brought her to the Allied Hospital. Resultantly the instant F.I.R. had been recorded.

3. The petitioner was arrested on 25-2-2004 and is in custody ever since. After being unsuccessful in obtaining bail from the learned Sessions Court Faisalabad, the petitioner applied for his pest-arrest bail in this Court vide his application bearing Criminal Miscellaneous No.5789-B of 2004. However, on 24-9-2004 the said application had been disposed of as having been withdrawn with a direction to the learned trial Court to proceed with the trial expeditiously and to conclude the same preferably within three months. Later on the petitioner moved this Court again by means of instant bail application wherein it was brought to the notice of this Court that no challan had been submitted in the Court and that a wrong statement had been made in the Court at the time of disposal of Criminal Miscellaneous No.5789-B of 2004 to the effect that the challan had been submitted in the Court. I had summoned the Deputy Inspector-General of Police as also Senior Superintendent of Police (Investigation) and brought to their notice the regrettable state of affairs in the case.

4. During proceedings of this case I had asked the petitioner if he was willing to go through a D.N.A. test. The petitioner agreed and submitted himself to D.N.A. test. However, the Centre for Applied Molecular Biology where the said DNA test had been conducted had filed their report wherein it was stated that, "the DNA profile obtained from stains cut from the Shalwar of victim is partial/incomplete, therefore, this report is inconclusive for the inclusion or exclusion of the suspect Sana Ullah".

5. I have considered the arguments addressed by Mr. Zafar Iqbal Chouhan, the learned counsel for the petitioner as also Ch. Aamir Rehman, Addl. Advocate-General assisted by Malik Mubarik Ali, Advocate for the State and have perused the record brought by Sabir Hussain, A.S.-I., Police Station, Chak Jhumra, District Faisalabad.

6. It is revealed from the record that during the course of investigation section 302, P.P.C. had been deleted and the petitioner had been challaned only under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. It is borne out from record that the petitioner had voluntarily subjected himself to DNA test which could have proved fatal for his case. Despite that he ran the risk by submitting himself to the said test. Section 302, P.P.C. has since been deleted. The applicability of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 in the given facts and circumstances of the case needs further probe. The trial has yet not concluded although the first direction for conclusion of the trial had been issued as far back as on 24-9-2004. It is now well-settled that the mere fact that the challan has been submitted or for that matter that even the trial has commenced, will not deter this Court from extending the C concession of bail to an accused person if otherwise he is entitled to the said concession on merits. Reference can profitably be made to the case of "Muhammad Umar v. The State" PLD 2004 SC

477. In view of the peculiar facts and circumstances, the case of the petitioner is one of further inquiry within the contemplation of subsection (2) of section 497, Cr.P.C.

7. Resultantly this petition is allowed and the petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs.1,00,000 (rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.

8. Before parting with this order I would like to add here that the observations made hereinabove are tentative in nature and are not meant to influence the course of the trial in any manner. N.H.Q./S-474/L????????????????????????????????????????????????????????????????????????????????? Bail granted.