2006 P Cr (PLP)

MUHAMMAD NAWAZ BHATTI, J.

The petitioner has sought his post-arrest bail in case F.I.R. No.333 of 2004 dated 18-9-2004 registered under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with section 377, P.P.C. at Police Station Kassowal, District Sahiwal.

2. Precisely the allegation against the petitioner as per prosecution story is that he along with other co-accused subjected Abdul Majeed aged 14 years to unnatural offence after drinking liquor and also administering liquor to the victim.

3. Learned counsel for the petitioner submits that two of the alleged eye-witnesses of the occurrence do not support the prosecution version; that the complainant is not an eye-witness of the alleged occurrence and the victim is aged about 19 years and was found drunk at the time of medico-legal examination and the same negates the prosecution story; that there is unexplained delay of 28 hours in lodging the F.I.R.; that the petitioner was arrested on 18-9-2004 and is behind the bars so far. Further submits that co-accused Sarwar has been declared innocent during the course of investigation and case against the petitioner is that of further inquiry and mere commencement of trial is not a ground for refusal of bail. Reliance has been placed on Naqi Hussain Shah v. The State 1992 SCMR 600; Muhammad Anar v. The State 2004 MLD 144 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585.

4. On the other hand learned counsel for the State assisted by learned counsel for the complainant has vehemently opposed the bail petition and submits that the petitioner is real culprit and is not entitled for the concession of bail. Further submits that trial has commenced and at this stage, Courts avoid to discuss the merits of the case in bail petitions. He has relied on Said Akbar and another v. Gul Akbar and another 1996 SCMR 931; Mian Dad v. The State 1992 SCMR 1418 and Allah Ditta and others v. The State 1990 SCMR 307.

5. Arguments heard, record perused.

6. Medical certificate is available on the record according to which the injuries are also obvious on the victim. Statements of the victim and complainant are also available on record which are against the petitioner. Trial in the case has commenced and case is fixed for evidence by the learned trial Court and attendance of witnesses has also been marked. Even in the case-law cited by learned counsel for the petitioner i.e. Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 it has been held that it is practice of the superior Courts that when a case is fixed for hearing, ordinarily the bail application is not decided on merits and matter is often left to the discretion of the trial Judge and this practice is directly relatable to the "question of prejudice". For what has been discussed above the petitioner does not deserve for the concession of bail and the same is dismissed. H.B.T./M-99/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.