2005 PLP 893 (MLD)

The petitioner being complainant of F.I.R. No. 309 dated 31-5-2004, under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, registered with Police Station Waris Khan District Rawalpindi, seeks cancellation of bail of respondent No.1 granted by the learned Sessions Judge, on 13-11-2004.

2. The learned Sessions Judge, while granting the bail to respondent No.1, recorded statements of the complainant as well as that of the victim wherein they deposed that dispute has been settled/patched up between the parties out of the Court.

3. Cancellation of bail was claimed on the grounds that there is no compromise between the parties and that the offence being not compoundable, respondent No.1 could not have been released on bail, on the basis of any settlement/compromise. It was also argued that a bare perusal of the F.I.R. made out an offence under section 10(4) of the Ordinance 1979 which being triable by Anti-Terrorist Court, the learned Sessions Judge had no jurisdiction to determine the bail matter. Misuse of concession of bail by respondent No.1 was also asserted with the arguments that respondent No.1 has given threats to the complainant of repeating the offence under which he is already charged.

4. The learned counsel appearing on behalf of the respondent No.1, who had the support of the learned counsel for the State, supported the bail order by the learned Sessions Judge and refuted the arguments of the petitioner, by urging that the challan of the case, has already been submitted in the Court on 20-11-2004, hence, bail may not be cancelled, at this stage. It was also submitted that during the investigation, prosecution version was found to be false and that the offence under section 10 of the Ordinance 1979 and under section 354, P.P.C. were deleted. On the basis of these findings it was further contended that the offence under section 16 of the Ordinance (ibid) was not scheduled offence whereas, the offence under section 10(4) of the Ordinance was excluded from the schedule, hence, the case is not triable by Anti-Terrorist Court.

5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the police record. Besides recording of statements by the learned Sessions Judge, Rawalpindi, of both the ladies i.e. the complainant and the victim, they also sworn their respective affidavits on 8-11-2004, confirming that on account of intervention of respectables of the area, they have compromised with the accused persons and have already forgiven them. Though the offence charged is not compoundable yet the compromise inter parties was a relevant factor for consideration at bail stage especially when during the police investigations, the prosecution version was not found to be correct. On the basis of inquiry and statements of the witnesses, offence under section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and under section 354, P.P.C. was deleted. Offence under section 16 of the Ordinance (ibid) is not scheduled offence, hence, is triable by ordinary Courts. Likewise, schedule to Anti-Terrorism Act, 1997 was subsequently amended and offence under section 10(4) was excluded therefrom through amendment in Anti-Terrorism (Amendment) Ordinance XXXIX of 2001 as reported in, (PLD 2002 Central Statute 107). Challan of the case has already been submitted and the same being ready for trial, it appears harsh to send respondent No.1 again behind the bars after lapse of three months. In alike circumstances this Court in the case of Nazir Nadeem v. The State (2002 PCr.LJ 160), refused cancellation of bail. Adverting to claim of the petitioner regarding misuse of concession of bail by respondent No.1 no police report, application or compliant has been placed on record to substantiate this assertion, hence, I am not persuaded to rely on mere verbal allegations of misuse of concession of bail, which are otherwise unprobable. Respondent No.1 if ultimately convicted by the trial Court would face the sentence awarded by it especially when the victim being a married lady her medical examination or chemical examination report are not much supportive of the prosecution case, hence, respondent No.1 had a case for his post-arrest bail.

6. For the reasons noted above, no case for cancellation of bail of respondent No.1 could be made out, hence, this petition having no merit in it is accordingly dismissed. N.H.Q./R-117/L Petition dismissed.