1. ' KHAWAJA NAVEED AHMED, J.---Brief facts of the prosecution case are that on 22-3-2006, one Muhammad Akber had lodged an F.I.R., in respect of an incident which had taken place on 13-3- 2006, within the jurisdiction of Police Station Baloch Colony. The complainant in F.I.R. Has stated that he is a driver and is residing with his family in Manzoor Colony, Karachi. On 13-3-2006, at 12-00 noon, his daughter Sonia Komal aged about 15 years, who was studying in Azmat Islam School in Manzoor Colony in class six had gone to school. At about 3-00 p.m., the girl residing in the neighbourhood namely Nazia had gone to her school and told her that her grand mother has died and took leave from the school for her. Thereafter both the girls were missing. On 2-3-2006, the girl living in neighbourhood namely Nazia has come back to her house, she had informed the complainant that one Junaid of Babar Market and his friend Naushad had taken them to Hyderabad and thereafter had brought them back to Karachi. Naushad had taken complainant's daughter Sonia with him with intention to commit Zina. Police registered the case and had arrested the accused.
2. ' This second bail application has been moved on behalf of accused Muhammad Zahid. His earlier bail application No,960 of 2007 was dismissed as withdrawn by order, dated 20-11-2007 and direction was given to the learned trial Court to record evidence of prosecutrix within 2 months of the receipt of the order and thereafter the applicant could repeat the bail application if so advised.
3. The applicant had repeated the bail application in the trial Court, which was rejected by order, dated 19-6-2008. While rejecting the bail application the learned trial Court observed that prosecutrix remained present on two dates of hearing only and could not be examined due to either strike of advocates or non-appearance of defence counsel. The above mentioned order was of 19th June, 2008. Thereafter, three months have passed and no progress has been made in the case till today. The prosecutrix has not been examined by the trial Court. The applicant, is in custody since 26-3-2006. The applicant remained continuously in custody for the last two and half years and not a single witness has been examined by the trial Court inspite of directions of this Court.
4. ' I have heard learned counsel for the applicant as well as the learned State counsel Ms. Fatima Jamila Jatoi and the Additional Prosecutor General Mr. Zafar Ahmed Khan. Both the counsel have vehemently opposed the bail application mainly on the ground that the innocent school girl was subjected to rape by the accused persons.
5. ' I have gone through the contents of F.I.R. As well as statements of both the prosecutrix record under section 164, Cr.P.C. Both the girls have given contradictory statements. As per medical certificate the age of Ms. Nazia was between 19 to 20 years on 30-3-2006. Nazia in her statement recorded under section 164, Cr.P.C. Has stated that "on 13-3-2006 her friend Sonia who is living in her neighbourhood came to her house. On that day Nazia's brother had beaten her and she was weeping, Sonia had seen her weeping and told to her that even she is also fed up from the behaviour of her family, she persuaded her to leave the house and go some where else. Nazia had agreed and according to the program Sonia had come to the school of Nazia and told her teacher that Nazia's mother is not well. They took leave from the school, came to Babar Market where one boy Junaid met them. He had asked them that they are looking upset. The girls told him that they have left their house. Junaid had taken both the girls to his shop where two strangers namely Naushad and Zahid were sitting. He told them to take these girls with them and give them some work. It is alleged that the boys have brought both the girls to Hyderabad and they were put in a room, where according to Nazia both the accused used to rape them. The other girl Sonia in her statement recorded under section 164, Cr.P.C. Has given entirely different story. She has stated that "Zahid had taken her to his house at New Karachi, where he and his family had beaten her and forced her to marry with Zahid, consequently Nikah had taken place but consummation of marriage hand not taken place."
6. ' The version given by both the girls in their statements recorded under section 164, Cr.P.C., is contradictory. Co-accused. Naushad was granted bail by the trial Court vide order, dated 17-7- 2006. The bail application of the present applicant was rejected twice by the trial Court and once by this Court.
7. ' Keeping in view the above mentioned circumstances, and the fact that the direction given by this Court has not been complied with despite lapse of 10 months' period, moreover, the applicant is in custody for the last two and half years without any progress in the case, I hold that this case is one which require further inquiry under section 497(2), Cr.P.C. And pending such inquiry I grant bail to the accused upon furnishing surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.##TE# ' The observations made by me in this order are tentative in nature. The trial Court should not be influenced by the observations while deciding the case. The trial Court should decide the case on the basis of evidence produced before the trial Court strictly according to the merits of the case.