2013 PLP 145 (MLD)

SH. AHMAD FAROOQ, J.

Through the instant petition, Muhammad Farooq/petitioner seeks his post arrest bail in a case arising out of F.I.R. No. 408 of 2010 dated 29-11-2010 registered in Police Station Bhagtanwala, District Sargodha under sections 376, 511, 458, P.P.C.

2. Precisely, the case of the prosecution as unfolded in the F.I.R. is that on the night of 24/25-11-2010 the petitioner along with his co- accused Imran trespassed into the house of the complainant and attempted to commit zina with his wife Mst. Saima Bibi and on her resistance, the petitioner inflicted blow with butt of pistol on her right eye.

3. Learned counsel for the petitioner submitted that there is a delay of five days in lodging the F.I.R. and the complainant has involved the present petitioner with mala fide intention. He further submitted that the injury attributed to the present petitioner has been declared "Shajjah Khafifah" which is bailable. He argued that the petitioner is behind the bars since 21-6-2011 and during the investigation, nothing was recovered from him. He added that he is no more required for the purpose of investigation or recovery and his further detention would not serve any useful purpose. Lastly, he argued that case of the petitioner is that of further inquiry, and as such, he is entitled to be released on bail.

4. On the contrary, learned D.P.-G. assisted by learned counsel for the complainant has opposed the instant petition on the plea that the petitioner is nominated in the F.I.R. with specific role. He submitted that the complainant, the prosecutrix and prosecution witnesses in their statements recorded under section 161, Cr.P.C. have fully implicated him in this case. He argued that the offence alleged to have been committed by the present petitioner falls within the prohibitory clause of section 497(1), Cr.P.C., therefore, he is not entitled to be released on bail.

5. Arguments heard. Record perused.

6. Admittedly, there is an unexplained delay of five days in registration of the case as the occurrence took place on the night of 24/25-11-2010 whereas the F.I.R. was lodged on 29-11-2010. According to contents of the F.I.R., the petitioner was allegedly armed with pistol and he caused butt blow on the right eye of Mst. Saima but the said victim while getting her statement recorded under section 161, Cr.P.C, not only stated that the petitioner inflicted fist blow on her right eye but also levelled allegation of an attempt to commit "zina" against a co-accused namely Imran, who has been released on bail as a result of compromise. The said contradiction in the allegation levelled in the F.I.R. and the statement of the victim, prima facie, creates serious dent in the prosecution story. Needless to mention here that benefit of doubt is to be given to an accused even at bail stage. Even otherwise, the injury attributed to the present petitioner has been declared "Shajah Khafifah", which is bailable. The present petitioner is behind the bars since 21-6-2011, the challan has been submitted in the court and there is no chance of its early conclusion. A report was called by this court vide order dated 4-10-2011 from the learned trial court about the latest position of the trial. The learned trial court has submitted his report dated 10-10-2011 which shows that the delay in conclusion of the trial is due to non appearance of the prosecution witnesses. The speedy trial is a right of an accused person. In the peculiar circumstances of this case, there are sufficient grounds to inquire further into the guilt of the present petitioner and post arrest bail cannot be refused to an accused as a measure of advance punishment.

7. In view of above, the petitioner is entitled to be released on bail. Consequently, the instant petition filed by Muhammad Farooq is accepted and he is allowed bail subject to his furnishing bail bonds in the sum of Rs.100,000 (one lac) with one surety in the like amount to the satisfaction of learned trial Court. MWA/M-377/L Bail allowed.