' HASNAT AHMAD KHAN, J.--- Through this application Muhammad Asghar petitioner has sought post-arrest bail in case F.I.R. No,238 of 2003 dated 12-7-2003, under sections 10/11, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), registered with Police Station Gulgasht, Multan.
2. In this case legal machinery was put into motion at the instance of Muhammad Ramzan complainant, according to whom, Muhammad Asghar petitioner developed illicit relations with his daughter namely Sumera, upon which the complainant forbade him from visiting his house. He further alleged that on 11-6-2003 in his absence, the petitioner abducted said Sumera i.e. Daughter of the complainant with the help of his sister.
3. According to the complainant, earlier to filing of this petition, an application bearing Criminal Miscellaneous No,349/B of 2004 seeking post-arrest bail was submitted by the petitioner before this Court.
' However, the same was not pressed and was dismissed as such on 4-3-2004. Thereafter, once again the petitioner tried his luck before the learned trial Court, but having tailed he has again approached this Court for said purpose through the present petition.
4. In support of this petition, learned counsel for the petitioners has contended that as the earlier petition was not dismissed on merits, the earlier order would neither bar filing of fresh petition nor its decision on merits. In this regard he has placed reliance upon the case Muhammad Riaz v. The State 2002 SCM R 184.
5. On merits, it has been contended by the learned counsel for the petitioner that the F.I.R. Was lodged with the inordinate delay of more than one month; that as a matter of fact the alleged abductee had married the petitioner on her own, vide a registered Nikahnama dated 14-6-2003. He adds that through a statement dated 23-10-2003 recorded under section 164, Cr.P.C. The alleged abductee had categorically owned said Nikahnama. He further adds that at the instance of her parents, the abductee had filed a suit for dissolution of marriage against the petitioner on 6-3- 2003 and in said suit also the validity of the said marriage was admitted by her. On the dint of said submissions, the learned counsel for the petitioner has claimed that a case of further inquiry has been made out in favour of the petitioner.
6. On the other hand, learned counsel for the complainant has opposed this bail application tooth and nail He has submitted that the charge in this case had been framed on 25-1-2006. However, he has conceded that till date, not a single witness has been recorded during the trial. He has further submitted that in her statement dated 8-1-2005 recorded under section 161, Cr.P.C. The alleged abductee had supported the case of the prosecution. He maintains that the petitioner is not entitled to bail.
7. After hearing the arguments of both the sides and going through the record, it has been straightway noticed that the F.I.R. In this case was lodged with inordinate delay of a month.
Moreover, it has been pertinently noticed that in the F.I.R. Itself, the complainant had admitted that the petitioner had developed illicit relations with his daughter. The said assertion, prima facie, removes the impression of forcible abduction of the alleged abductee. The assertion of the petitioner that the alleged abductee had entered into a marriage bond with the petitioner, gets support from the copy of Nikahnama placed on the record. The genuineness of the said Nikahnama was acknowledged by the alleged abductee through her statement recorded under section 164, Cr.P.C. Which was recorded by the Magistrate after observing all the necessary formalities. In the said statement, she had categorically stated that she had never been abducted by any body. The contention of the learned counsel for the complainant that the said statement was recorded under coercion as was claimed by her in statement recorded under section 161, Cr.P.C. Prima facie, does not hold water, inasmuch as, statement recorded under section 161, Cr.P.C.
Cannot be preferred over the statement recorded under section 164, Cr.P.C. At any rate. It is noteworthy that statement of the abductee had been recorded by the police under section 161, Cr.P.C. After more than 1-1/2 years of alleged occurrence. Worth of said statement vis-a-vis her statement recorded under section 164, Cr.P.C. Would be requiring serious consideration of the learned trial Court.
8. The genuineness of the above mentioned Nikahnama has been denied by the learned counsel for the complainant, but he has candidly admitted that though the alleged abductee has been living with her parents since 8-1-2005 (date of her return), yet no suit for jactitation of marriage has been filed by her up-till-now. On the other hand, a copy of the suit filed by her for dissolution of marriage has been placed on record by the petitioner. In the said suit, the genuineness of the Nikahnama has not been denied. All the above mentioned facts clearly show that the petitioner has become able to show that a case of further inquiry has been made out in his favour. If some case-law is required in this regard, reference is made to Azam's case reported as PLD 1984 SC 95.
9. The bail cannot be refused to the petitioner simply on the ground that the charge has already been framed, as it is established law that if the accused becomes able to show that his case falls within the ambit of section 497(2), Cr.P.C., he becomes entitled to bail as a matter of right and the bail cannot be denied to him on the rule of propriety, whereby, after start of the trial, bail is normally not allowed to the accused. Reliance in this regards is placed upon the cases PLD 1989 SC 585, PLD 1989 Lah.
233. And 1987 M LD 1608. There is yet another ground for acceptance of this petition i.e. Accused has been suffering premature sentence for a period of last three and half years. Though, the charge in this case was framed on 25-1-2006, yet not a single witness has been recorded in this case uptill now. It is settled law that the ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. The crux of all the above discussion made above is that the petitioner is found to be entitled to the concession of post-arrest bail. Consequently, this petition is accepted and the petitioner is allowed post-arrest bail subject to furnishing bail bonds in the sum of Rs,1,00,000 (one lac) with one surety in the like amount to the satisfaction of the learned trial Court.
10. Before parting with the order, it is observed that while deciding the main case, the learned trial Court would not be influenced by any observation made in this order.