2008 PLP 35 (MLD)

M. BILAL KHAN, J.

Atta Muhammad son of Dost Muhammad alias Mohallah, the petitioner, by filing this petition, seeks post-arrest bail in case F.I.R. No.176/07, dated 30-4-2007, registered with Police Station Rajana District Toba Tek Singh, for an offence under section 376, P.P.C.

2. The allegation against the petitioner in the F.I.R. registered at the instance of Muhammad Arif son of Rehmat Ali, the complainant, was that he (complainant) had gone to mosque, in the early hours of the morning to give call (AZAN) for prayers and his wife Mst. Jameela Bibi and his children were sleeping in the house; in his absence, Mst. Gudee Bibi his neighbour came to his house; awakened her wife Jameela Bibi on the pretext that her husband (petitioner) had quarrelled with her and that she should accompany her to forbid him (petitioner); accordingly she went to the house of the latter and when she entered the house, the petitioner bolted the door from inside; took Mst. Jameela Bibi inside the room after putting his hand on her mouth and forcibly committed zina with her while Mst. Gudee Bibi stood guard at the main gate.

3. The petitioner had been arrested on 11-5-2007 and is in custody ever since. His plea for post-arrest bail did not find favour with the learned Addl. Sessions Judge, Toba Tek Singh who turned down his application vide order, dated 20-9-2007. Hence this petition.

4. After hearing the learned counsel for the petitioner as also the learned Deputy Prosecutor-General and going through the record, it has been observed that there is an unexplained delay of seven days in lodging the F.I.R. for which no plausible explanation is forthcoming. It has also been observed that prima facie the story as narrated in the F.I.R. is quite fanciful, in that, in our society it would be too much to expect a woman to facilitate and assist her husband in committing zina with another woman. It is one of the basic principles of criminal law that the prosecution story has to have a ring of truth about it and must not loose its, connection to reality. I would not like to further dwell on this aspect of the case, as any further discourse thereon may have the tendency of prejudicing the case of either of sides. Suffice it to say that the prosecution story as it is, needs to be put to scrutiny during the course of trial and calls for further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. especially so, when Mst. Gudee Bibi the wife of petitioner has since been declared to be innocent during the course of investigation. The case had been registered on 30-4-2007 and the trial, has not been commenced so far.

5. Resultantly, this petition is allowed and the petitioner is admitted to post-arrest bail provided he furnishes bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial Court.

6. Before parting with this order I would like to add that the observations made hereinabove are tentative in nature and are not designed to influence the course of the trial in any manner whatsoever. N.H.Q./A-215/L Bail granted.