2007 PLP 3119 (YLR)

M. BILAL KHAN, J.

Petitioner Khalid Hussain son of Talib Hussain, seeks his post-arrest bail in case bearing F.I.R No.37 dated 14-6-2003, initially registered under section 354, P.P.C. at Police Station Jora Kalan, District Khushab. Subsequently section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sections 337-A (i), 337-F (i) P.P.C. were added on 21-7-2003.

2. The allegation as contained in the F.I.R. recorded by Mst. Shamim daughter of Ghulam Habib was that while she was all alone in her house on 13-6-2003, the petitioner came there, held her from her hair and gave her a bite on her left upper arm. According to the complainant when she tried to rescue, herself, her Qameez got torn off and she received scratches on her face and neck. On her hue and cry the witnesses mentioned in the F.I.R. were attracted whereupon the petitioner made good his escape. The motive according to the complainant was that the accused suspected that the complainant had complained against her sister Yasmeen.

3. Pre-arrest bail .was allowed to the petitioner by the learned Sessions Judge Khushab vide his order dated 24-7-2003. However on addition of section. 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sections 337-A, (i)337-F(i), P.P.C. 'The petitioner was arrested on 10-9-2003, whereafter he applied for his post-arrest bail which plea did not find favour with the learned Sessions Judge Khushab who vide,-his order dated 23-9-2003 dismissed the application. Hence this petition.

4. Mr. Muhammad Amir Khan, Advocate, learned counsel for the petitioner in support of his plea for bail has argued that from a plain reading of the FIR. The applicability of section 18 of the Hudood Ordinance ibid can be ruled out; that initially Section 354, P.P.C. was applied and when the complainant party realized that the said offence was bailable and the petitioner had been granted pre-arrest bail, it in connivance with the police manoeuvred the addition of Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 337-A(i), 337-F(i) PPC with a view to making the offence non bailable and also with a view to lending a touch of seriousness to the incident; that no supplementary statement of the victim was .recorded whereupon it could be said that some new information had come to the notice of the police. Finally the learned counsel argued that in view of the facts of the case the petitioner's case is one of further inquiry.

5. On the other hand Mr. Sajid Raza, Advocate learned counsel for the Sate opposed the grant of bail to the petitioner as according to him the petitioner has been duly nominated in the F.I.R. and he tried to outrage the modesty of a woman.

6. Heard.

7. When the learned State counsel was asked as to what was the material on the basis of which section 18 of the Hudood Ordinance 1979, ibid read with sections 337-A(i), 337-F(i) were added he frankly conceded that there was no material in the shape of a supplementary statement of the prosecutrix or the statement of the witnesses under. section 161, Cr.P.C. In view of the facts and circumstances of the case the applicability of the aforesaid sections prima facie appears to be doubtful. Accordingly the case of the petitioner is one of further enquiry as envisaged by subsection (2) to .section 497, Cr.P.C. entitling, him the concession of bail.

8. Consequently this petition is allowed and the petitioner is admitted to bail provided he furnished bail bond in the sum of Rs.30,000 with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./K-16/L Bail allowed.