1. ' MUHAMMAD AFZAL SOOMRO, J.--- Through this application, moved under section 497(5), Cr.P.C., applicant, Muhammad Shahid, has impugned the order, dated 8-1-2005, passed by learned IInd Additional Sessions Judge, Karachi East granting bail to respondent No, 1 in a case arising out of F.I.R. No, 522 of 2004 registered at Police Station Shahrah-e-Faisal, Karachi East under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance").
2. ' Brief facts leading to the filing of this criminal miscellaneous application seeking cancellation of bail granted to respondent No, 1 in the above-stated case are that on 15-12-2004 at about 8-30 p.m. Complainant, Muhammad Shahid Malik, set the law into motion by lodging F.I.R. At Police Station Shahrah-e-Faisal, Karachi stating therein that since he had suspicion on the character of his wife namely Mst. Tasneen Malik, hence he fixed a secret camera in his bed room in order to remove his doubt and after getting recorded three video cassettes in which his said wife and his driver Lateef Ismail Soomro were found committing adultery with each other on different occasions, he became about his sure. It has; further been disclosed in the F.I.R. That such video cassettes as a token of proof can be produced. On the basis of above report of the complainant, F.I.R., as, above, was recorded.
3. ' The investigation followed during which place of incident was inspected by Investigating Officer who secured one video cassette and a cloth bed-sheet in police custody in presence of Muhammad Shahid Malik and Abdul Khaliq whereafter co-accused Mst. Tasneem were arrested.
4. Her medical examination was conducted through W.M.L.O. Civil Hospital Karachi, in due course respondent No, 2 was sent up to stand trial in the Court of law. On 21-12-2004 applicant, herein, voluntarily appeared at the police station and was arrested accordingly.
5. ' He was also medically examined through M.L.O. Civil Hospital. After medical examination of co- accused Tasneem Malik, her vaginal slide was prepared and sealed by the W.M.L.O. Which was handed over to the Investigating Officer who after getting permission of competent authority sent semen stained cloth sheet as well as the vaginal slide to the Chemical Examiner.
6. ' However, a bail application was filed before the Court of learned IInd Additional Sessions Judge, Karachi East in Sessions Case No, 885 of 2004 on behalf of co-accused Mst. Tasneem Malik who was granted bail vide order, dated 5-1-2005 whereafter an application for bail, moved on behalf of the respondent, was also granted vide order, dated 8-1-2005 which has been impugned in this criminal miscellaneous application.
7. ' I have heard Mr. Khawaja Naveed Ahmed, learned counsel appearing for the applicant, Mr. Fazlur Rehman, learned counsel for the State and Mr. Ghulam Mustafa Memon, learned counsel for respondent No, l.
8. ' It has been contended by the learned counsel for the applicant that the learned trial Judge without applying her judicial mind to the fact that respondent No, 1 has committed sexual act without being married with co-accused, video tape of which was got recorded and produced before her. It has, further, been contended that the learned trial Judge while granting bail to respondent No, 1 has acted mechanically inasmuch as first paragraph of her order carries name of Mst. Tasneem Malik as applicant instead of Abdul Latif who was actual applicant. It has, also been contended by the learned counsel for the applicant that the learned trial Judge has given no findings on merits of the case and has hurriedly passed the order without discussing the merits of the case. It has, further, been contended by the learned counsel that the evidence collected by the prosecution in the shape of statement of two eyewitnesses namely Saghir Ahmed and Saleem Diwan were also not considered by the learned trial Judge. Even the video tape was never displayed or seen by the trial Judge prior to deciding the bail application. It has, also, been contended by the learned counsel that the offence committed by respondent No, 1 falls within the prohibitory clause of section 497, Cr.P.C. It has, also, been contended by the learned counsel that respondent No, 1, though working as driver with the applicant, has played with the trust of his master and has committed such a heinous offence which requires strong action under the law.
9. Learned counsel has produced two C.Ds., stated to have been recorded through said secret camera affixed by the applicant for removal of his suspicion.
10. ' On the other hand, learned counsel appearing for respondent No, 1 has, vehemently opposed the cancellation of bail granted to respondent No, 1 by the learned trial Judge. Learned counsel has contended that neither any eye-witnesses has been cited in the F.I.R. Which, though was registered under section 10(2) of the Ordinance but was lodged with the delay of ten days inasmuch as the offence alleged to have taken place on 6-12-2004 whereas the F.I.R. Was lodged on 16-12-2004. It has, also, been contended by the learned counsel that within the period of ten days the applicant could not arrange any eyewitness who can support his contention that Zina was actually committed by respondent No, 1 although two witnesses have been cited during the investigation who only acted as Mashirs of recovery of semen stained bed-sheet and said video cassette. He also argued that provisions of section 10(2) of the Ordinance do not attract the case of respondent No, 1 for the reasons that the video film, copy of which was supplied to him on the last date of hearing, does not contain any act of committing Zina by respondent No, 1 or the co-accused having been victimized to Zina inasmu ch as the said film shows that one man and woman were kissing to each other and such act does not amount to commission of Zina as even intention of committing Zina does not cover the provisions of section 10(2) of the Ordinance. So far as the contention of the learned counsel for the applicant that the learned trial Judge while granting bail to respondent No, 1 has acted mechanically inasmuch as first paragraph of her order carries name of Mst. Tasneem Malik as applicant instead of Abdul Latif who was actual applicant is concerned, it has been argued by the learned counsel for respondent No, 1 that the said lacuna is only because of typing error which is rectifiable. It has, also, been contended by the learned counsel that challan has already been submitted before the trial Court and the case is proceeding and in such a situation application for cancellation of bail granted to applicant by the trial Court may not be accepted inasmuch as prayer to cancel the bail may be refused in cases where the order of trial Court allowing bail to accused being neither arbitrary nor perverse, needs no interference. He further contended that there are three grounds mentioned in section 497(5), Cr.P.C. For cancellation of bail granted to an accused namely (i) if the accused person misuses the liberty of bail; (ii) if the accused person commits same offence while remaining on bail; and (iii) if the accused person tries to tamper the evidence brought on record against during the investigation but in the present case none of these grounds has been alleged against him by the prosecution or the applicant. He has relied upon the cases of Abdus Sattar v. Muhammad Yaqub and another 1970 SCM R 786; Muhammad Saleem and another v. The State 1988 PCr.LJ 2321; Akmal Masih v.
11. Salamat Masih and 4 others 1988 SCM R 918; Ameena Hassan alias Tina and others v. The State 1994 PCr.LJ. 1495; Irshad Ahmad Shahid v. The State 1998 PCr.LJ 1990; Mst. Shakeela v. The State 2001 PCr.LJ 43; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Miandad v. The State and another 1992 SCM R 1418; Naimatullah v. Zulfiqar Ali and 3 others 1999 PCr.LJ 883; Raja Rafaqat Usmani v. Umar Farooq Abbasi and another 2002 PCr.LJ 1262 and Mst. Marium Haji and others v. Mrs. Yasmin R. Minhas and others PLD 2003 Kar. 148 in support of his contentions.
12. ' Learned counsel for the State has also adopted the arguments of the learned counsel for respondent No, 1 and while making submissions in support of the impugned order has contended that neither any of the grounds, having been mentioned in section 497(5), Cr.P.C., for cancellation of bail has been taken nor any allegation warranting cancellation of bail, granted by the trial Court, has been levelled against respondent No, l.
13. ' I have considered the arguments advanced on behalf of the respective parties, perused the record produced before me and have also gone through the case-law, cited as above.
14. ' Admittedly, F.I.R. Which, though was registered under section 10(2) of the Ordinance, that too with the delay of ten days does not disclose name of any eye-witness as required by section 8 of the Ordinance for ascertaining the fact about the act of penetration or who may support the contention of the applicant that Zina was actually committed by respondent No,
1. Only two witnesses have been cited during the investigation who acted as Mashirs of recovery of semen stained bed-sheet report of which is awaited and said video cassette. Tentatively speaking, the provisions of section 10(2) of the Ordinance do not attract the facts enumerated in the F.I.R. For the reasons that the video film, copy of which was supplied to this Court and has been seen by me, does not contain any act of respondent No, 1 and so also the co-accused which can be defined as Zina inasmuch as the said film shows that one man and woman were kissing to each other. In this regard, I refrain myself to give any observation because such observation can affect the trial of the case.
15. ' I am informed that challan has been submitted in the trial Court and the case is proceeding. In such a situation, this application for cancellation of bail granted to respondent No, 1 by the trial Court cannot be entertained.
16. ' Moreover, there are three grounds mentioned in section 497(5), Cr.P.C. For cancellation of bail granted to an accused namely (i) if the accused person- misuses the liberty of bail; (ii) if the accused person commits same offence while remaining on bail; and (iii) if the accused person tries to tamper the evidence brought on record against during the investigation but in the present case none of these grounds appears to have been alleged against respondent No, 1 by the prosecution or even the applicant.
17. ' In this background, I do not feel myself in agreement with the learned counsel for the applicant and am of the considered view that he has not been able to make out a case for cancellation of bail granted by the trial Court to respondent No, 1.
18. ' Accordingly this criminal miscellaneous application is dismissed.
19. ' Criminal Miscellaneous No, 6 of 2005 stands disposed of.