2007 P Cr (PLP)

HASNAT AHMAD KHAN, J.

The petitioner seeks post-arrest bail in case F.I.R. No.275 of 2005 dated 19-11-2005, registered at Police Station Sadar. Shujabad, District Multan, in respect of offence under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. Shorn of unnecessary details, the prosecution story as narrated in the F.I.R. lodged at the instance of Mst. Nadia Ishaque, complainant, is that on 11-11-2005 the husband of the complainant, namely Muhammad Ishaque, had gone to attend the marriage ceremony, while father-in-law and mother-in-law of the complainant were at home. At about 4-00 p.m. the complainant allegedly went to the cotton crop, at a distance of about 4 acres, to ease herself. The petitioner, along with Muhammad Nasir Abbas co-accused, armed with .30 bore pistol emerged from the cotton crop. Muhammad Asif petitioner started Zina-bil-Jabr with her, while Muhammad Nasir Abbas co-accused stood as a guard nearby. On hue and cry raised by the complainant, Inayat Mehmood and Mumtaz Ahmad P.Ws. were allegedly attracted to the scene of occurrence. On seeing the witnesses, both the accused according to the complainant managed their escape.

3. That this petition firstly came up for hearing before one of my learned brothers before whom the earlier bail application Criminal Miscellaneous No.3058/B of 2006 was withdrawn. But the said learned Judge who is presently available at this Bench refused to hear this petition. Consequently, this petition was entrusted to me.

4. In support of this petition, learned counsel for the petitioner has contented that the story narrated in the F.I.R. is not probable; that there was ail inordinate delay of 8 days in lodging the F.I.R. which makes the prosecution case doubtful; that the complainant was medically examined after two days of lodging of the F.I.R.; that the medico-legal certificate shows that no mark of violence had been found on the body of the victim; that the report of Chemical Examiner reveals that the vaginal swabs of the victim were not found to be stained with semen and that the medical report coupled with the report of Chemical Examiner shows that it is clearly a case of further inquiry. Confronted with the objection regarding the maintainability of this petition, in view of the dismissal of earlier bail applications by this Court, the learned counsel for the petitioner has submitted that none of the earlier bail application was decided on merits and therefore, the orders of dismissal of earlier bail applications do not debar the petitioner from seeking post-arrest bail. He has further contended that 2nd bail application was dismissed as withdrawn on 19-10-2006, but even thereafter, the trial has not concluded. When queried about the effect of start of trial, the learned counsel for the petitioner has submitted that after having succeeded in making out a case of further inquiry, the start of trial would not debar the petitioner from seeking post-arrest bail. In this regard he has placed reliance upon the cases of Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585, Muhammad Saleem v. The State PLD 1989 Lah. 233 and Zulfiqar Ali v. The State 1987 MLD 1608.

5. Regarding the merits of the case, the learned counsel for the petitioner has further placed reliance upon the cases of Amin v. The State PLD 1972 SC 277, Muhammad Riaz v. The State 1998 PCr.LJ 320, Raja Muhammad Akram Khan v. Mazhar Iqbal and 2 others 2004 PCr.LJ 935, Ali Bahadur v. The State KLR 2000 Criminal Cases 222, Musa v. The State 1983 PCr.LJ 16, Hasil and others v. The State 1986 PCr.LJ 720(1), Muhammad Siddique v. The State 1985 PCr.LJ 658, Pervez Akhtar v. The State 1984 PCr.LJ 2483, Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ 582 and Abdul Majeed v. The State 2001 YLR 540.

6. Conversely, the learned counsel for the complainant has contended that the petitioner is specifically named in the F.I.R. The charge in this case has already been framed and the case is fixed for the evidence of the prosecution, therefore, the petitioner is not entitled to bail. He has further contended that the earlier application filed by the petitioner was dismissed as withdrawn, therefore, he is not entitled to bail.

7. I have heard both the parties and gone through the record.

8. As far as the objection of the learned counsel for the complainant that the presence of earlier order of dismissal of application for bail filed by the petitioner, fresh bail application is not entertainable, suffice to observe that none of the previous bail applications was dismissed on merits. As such, there is no impediment for the decision of this petition on merits. Reliance in this regard is placed upon a judgment rendered by the Honourable Supreme Court in case of Muhammad Riaz v. The State 2002 SCMR

184. As far as the objection regarding the start of the trial is concerned, it is observed that it is a settled law that if the case of any accused is found to be one of further inquiry, he becomes entitled to bail as a matter of right and not as a grace. And when the accused becomes entitled to bail as a matter of right, same cannot be refused on the basis of the rule of propriety which requires that after the start of the trial, normally the bail should be refused. If any case-law is required in this regard reference is made to the cases of Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585, Muhammad Saleem v. The State PLD 1989 Lah. 233 and Zulfiqar Ali v. The State 1987 MLD 1608. I would like to further observe that under section 497(4), Cr.P.C. if the Court comes to the conclusion that there are reasonable grounds for believing that accused is not guilty of any non-bailable offence; bail can be granted even after the conclusion of the trial and before the judgment is delivered.

9. Now, I proceed to examine as to whether the accused has succeeded to make out a case of further inquiry or not. In this regard, I have straightaway observed that there is inordinate delay of 8 days in lodging the F.I.R. which has not been properly explained. While granting the bail to the co-accused, Muhammad Nasir Abbas, in Criminal Miscellaneous No.2633/B of 2006, my learned brother Muhammad Sair Ali, J. had observed that the explanation of the delay in lodging of the F.I.R. did not prima facie, appeared to be plausible. I have got no reason to differ with the said findings especially when the said order is holding the field till clay. I have further observed that the victim, who is a married lady, was medically examined with the further delay of two days. The medical report shows that there were no marks of violence on the body of the victim. The negative report of Chemical Examiner also makes the case of the petitioner as that of further inquiry. While holding so, I am fortified by the judgments relied upon by the learned counsel for the petitioner. In case of Muhammad Siddique v. The State 1985 PCr.LJ 658 bail was granted to the accused while observing as under: "Admittedly, there is delay of more than 4 days in lodging the F.I.R. and the prosecutrix who is a married lady was examined 3 days later. No marks or violence had been found on her person." Similarly, while granting bail to the petitioner in case of Rasheed v. The State 1983 PCr.LJ 2420 this Court held as wider:-- "The question raised by the learned counsel for the petitioner that the commission or Zina-bil-Jabr was not possible in the manner as alleged by the prosecution, would require a serious consideration at the trial. The prosecutrix was medically examined on 14th March, 1982. Her medico-legal report shows that there was no mark of injury or violence on any part of her body. In the circumstances of the case, I feel that the case of the petitioner needs further inquiry." Similar views were expressed while granting bail to the accused in the other cases relied upon by the learned counsel for the petitioner.

10. In a case decided by the Honourable Supreme Court reported as Amir v. The State PLD 1972 SC 277 it was held that for the purposes or bail, the law is not to be stretched in favour of the prosecution. If any E doubt arises that benefit of doubt must go to the accused. Similar view was taken in a case of Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ

582. In the circumstances of the case, the question whether the case against the accused was of Zina-bil-Jabr or consensual sex, would also be needing serious consideration of the learned trial Court.

11. For all the reasons mentioned above, I have come to a definite conclusion that the petitioner had become able to show, that the case of the prosecution requires further inquiry and therefore, the petitioner is entitled to bail as a matter of right. Consequently, the start of the trial would not cause any hindrance in' the way of the petitioner to get concession of bail. Resultantly, the application in hand is accepted and the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.

12. Before parting with the order, it is observed that the observation made in the bail orders are always tentative in nature, therefore, the trial Court would not be prejudiced by any of the findings given in this order. It is further observed that if the petitioner after being released on bail is found guilty of misuse of the same and especially in the matter of causing delay in the trial, this order would be liable to be withdrawn on the move of the State or the complainant. N.H.Q./M-286/L Bail allowed.