2007 P Cr (PLP)

TARIQ SHAMIM, J.

Through this petition the petitioner seeks cancellation of post-arrest bail allowed to respondent No.1 by the learned Additional Sessions Judge, vide order, dated 31-11-2006.

2. The brief facts of the case are that Mst. Naziran Bibi-petitioner lodged F.I.R. No.430 dated 21-8-2006 under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Qadirabad, District Mandi Bahauddin against the respondent for allegedly committing Zina-bil-Jabr with her. Respondent No. 1 filed a petition for grant of post-arrest bail which was allowed by the learned Additional Sessions Judge, Mandi Bahauddin vide order, dated 13-11-2006. The petitioner being aggrieved of the 'said order has approached this Court for cancellation of the bail.

3. The learned counsel for the petitioner inter alia contended that the petitioner was raped by respondent No.1 who failed to urge or show mala fide intention or ulterior motives of the petitioner for his false involvement in the case; that the grounds on the basis of which respondent No.1 had been allowed bail by the learned Additional Sessions Judge were not sustainable at law; that the bail granting order was contrary to the evidence available on the record against the respondent who had been found to be involved in the case by the police during investigation and that the offence attracted the prohibition contained in subsection (1) of section 497, Cr.P.C. which aspect was not considered by the learned Additional Sessions Judge.

4. The learned Deputy Prosecutor-General has adopted the arguments advanced by the learned counsel for the petitioner and has also prayed for cancellation of bail allowed to respondent No.1.

5. Conversely, the learned counsel representing respondent No.1 contended that there was a delay of 20 days in lodging of the F.I.R. which had not been explained; that in the application submitted by the petitioner under sections 22-A, 22-B, Cr.P.C. on the basis of which the F.I.R. was lodged, the name of the accused was mentioned as Fayyaz alias Fauju and not Shahbaz Ahmad (respondent No.1); that the report submitted by the S.H.O. on the said application revealed that one Fayyaz alias Fauju had actually committed Zina with the petitioner with whom she had entered into a compromise and for ulterior motives had subsequently implicated the petitioner, that the MLR obtained by the petitioner was false; that the report of the Chemical Examiner was also in the negative; that in the MLR the only injury shown on the person of the petitioner was a minor bruise which also belied the story narrated in the F.I.R.; that after the submission of challan, charge had been framed and prosecution evidence had been summoned and, therefore, the bail allowed to respondent No.1 was not liable to be cancelled.

6. I have heard the learned counsel for the parties and gone through the record.

7. It has been noticed that the F.I.R. was lodged on the directions of learned Additional Sessions Judge/Ex-Officio Justice of Peace on an application filed by the petitioner under sections 22-A, 22-B, Cr.P.C. in which the accused who had committed the offence of Zina-bil-Jabr with the petitioner is named as Fayyaz alias Fauju whereas the name of respondent No.1 is conspicuously missing. The report submitted by the police before the learned Additional Sessions Judge reveals that Fayyaz alias Fauju had committed Zina with the petitioner with whom she had entered into a compromise. Therefore, the possibility of respondent No.1 being falsely involved in the case by the petitioner cannot be ruled out. The report of the Chemical Examiner was returned in the negative and the medico-legal report does not reveal any serious injury on the person of the petitioner except a minor bruise. Further, there is delay of 20 days in lodging of the F.I.R. which has not been explained and which creates doubt about the prosecution case. Challan in the case has been submitted and after framing of the charge prosecution evidence has been summoned.

8. From the above, it can be safely inferred that the case of the petitioner is one of further enquiry calling for further probe into his guilt. The basis on which bail was granted to respondent No.1 by the learned Additional Sessions Judge appears to be valid and not without substance. The conclusion drawn by the learned Additional Sessions Judge in allowing bail to respondent No.1 are neither whimsical nor arbitrary or fanciful. Bail once validly granted by a Court of competent jurisdiction can be recalled only under exceptional circumstances. The learned counsel for the petitioner has not been able to show any such circumstance calling for interference by this Court in the well-reasoned order of the learned Additional Sessions Judge. Even otherwise the provisions of section 497(5), Cr.P.C. are not punitive in nature and it is not incumbent upon the Court to cancel bail in each and every case.

9. For what has been stated above, I am not inclined to interfere in the impugned order passed by the learned Additional Sessions Judge, dated 13-11-2006. Consequently, this petition has no merit which stands dismissed. H. B. T. /N-57/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.