2007 PLP 153 (YLR)

HASNAT AHMAD KHAN, J.--The petitioner seeks bail after arrest in case F.I.R. No.613 of 2006 dated 14-8-2006 registered under sections 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 at Police Station, New Multan.

2. The brief facts of the case, as disclosed in the F.I.R. are that father of complainant died 12/13 years ago and after his death the mother of Reema complainant entered into marriage with Sajjad Hussain petitioner who is step-father of Mst. Reema. He used to love her a lot to which she did not use to resist as she has been treating him like her father. On 24-7-2006 she was taken away by the petitioner as a result of inducement. She did not ask the reason for said act. The petitioner allegedly took her to the house of one Allah Wasaya where he committed Zina-bil-Jabbar with her. Thereafter she was taken away by the petitioner to the house of a person namely Zafar where the petitioner did not commit any indecent act.

3. In support of the case learned counsel for the petitioner has contended that there is a delay of about 21 days in lodging the F.I.R. which has not been sufficiently explained in the F.I.R.; the complainant/victim herself submitted an application before the Ilaqa Magistrate in which she disowned the allegations levelled in the F.I.R., on the basis of said statement she was sent to Dar-ul-Aman. He has further contended that during the pendency of the bail application before the learned trial Court the victim submitted an affidavit in which she once again disowned the contents of F.I.R. and claimed that she was never subjected to rape or Zina by the petitioner; during the pendency of the said bail application she appeared before the learned Additional Sessions Judge, Multan and once again made a statement before the said Court that petitioner had not committed any sought of crime with her. He adds that the petitioner was arrested on 29-8-2006 but the challan has not yet been submitted. According to the petitioner medical report is also not helpful for the prosecution as no swabs were taken and as such there is no report of Chemical Examiner.

4. Mr. Falak Sher Chaddar, learned Advocate who has entered appearance on behalf of the complainant does not oppose this bail application. Victim herself is present in the Court. She once again disowned the contents of the F.I.R. On asking of the Court she has stated that she has not been pressurized by the petitioner or on his behalf to support him.

5. The learned State counsel has vehemently opposed this application on the ground that there is sufficient evidence to implicate the accused in the case in hand. He adds that though the victim is not supporting the prosecution case but statements of Muhammad Saeed and Allah Bakhsh witnesses recorded under section 161 Cr.P.C. are on record which support the prosecution case. He further adds that the offence is not compoundable and the medical report has supported the prosecution case.

6. During the arguments learned counsel for the petitioner produced certified copy of an application filed by Mst. Kaneez Bibi mother of the' victim which was decided on .20-10-2006 by the learned Sessions Judge, Multan. The said order also shows that victim appeared before the said learned Court and categorically disowned the contents of the F.I.R. Certified copy of the said application along with order has been attached with the file.

7. I have heard all the parties at length. It is true that the offence is not compoundable and bail cannot be granted due to the compromise of the victim with the petitioner but on the other hand it is also a fact that victim is a star witness in the case. The question of the conviction of the petitioner would largely depend upon her evidence but she has made statement on more than two occasions wherein she has disowned the contents of the F.I.R. The statements of the two witnesses, namely, Muhammad Saeed and Allah Bakhsh are only to the effect that they have seen the victim in the company of the petitioner. I have gone through their statements. They have not claimed to be the eye-witnesses of the Offence of Zina. The worth of their statement would be seen at the time of the trial. There is delay of twenty-one days in lodging the F.I.R. which also makes the A case as that of further inquiry. I am mindful of the fact that in cases of "Zina" the delay in lodging of F.I.R. is not normally treated to be a factor for granting the bail but when this fact is coupled with the fact that victim herself is disowning the contents of the F.I.R. this delay can be considered as an additional ground to make the case as of further inquiry. Except the statement of the complainant/victim on the basis of which the F.I.R. was registered, there is no direct evidence of Zina.

8. The Medical Examination of the victim was conducted after twenty two days of the occurrence and according to the learned counsel for the State for this reason no swabs were taken.

9. The accused is behind the bars since 29-8-2006. Challan has not yet been submitted. The early conclusion of the trial is the right of accused. It is established law that bail should not be withheld as a matter of punishment.

10. All the facts narrated above sufficiently show that the petitioner has succeeded to make out the case as that of further inquiry as such while accepting his application, he is allowed bail subject to his furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./S-190/L??????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.