'CH. IFTIKHAR HUSSAIN, J.---Petitioner Mehdi Hassan through the instant petition has prayed for post arrest bail in case F.I.R. No,564 registered under section 376, P.P.C. With Police Station Sadar Sargodha on 26-12-2008.
2. Briefly the prosecution story as per the F.I.R. Is that on the night between 14/15-12-2008, he along with one Aslam scaled over the wall of the house of the complainant and took her to Chak No,109- Shumali, Sargodha and there they both had been subjecting her to rape and the next day at about 5.00/6.00 a.m., they took her to Chiniot in a vehicle and there under threat of life, obtained her thumb impressions and signatures on some papers and he (petitioner), thereafter, had again been committing rape with her.
After hearing the learned counsel for the parties and perusing the record, I find that although he is named in the F.I.R. With the above allegation but his case is that the complainant/lady is his legally wedded wife and he in this regard, relies upon the Nikah Nama annexed to the petition. According to the same their marriage was solemnized on 14-5-2006. It, thus, was much prior to the alleged incident and even the registration of the case. It is every body's case before me that she had gone to the competent Family Court with the plea of false pretence of marriage with her on the part of the petitioner and denies to have entered into valid Nikah with him.
4. Without adverting much to the correctness or otherwise of her such plea, I am very much clear in my mind that such question is always to be gone into by the competent Family Court. Any' verdict there from would determine the question of validity or otherwise of that Nikah.
5. Here I also have no hesitation say that till such time, the case against petitioner calls for further inquiry into his guilt. The same, therefore, is covered under subsection (2) of section 497 Cr .P. C.
6. He is stated to be behind the bars since 17-3-2009. So, the period of his detention is spread over about six months.
7. I have been informed that his trial has commenced. Needless to mention here that mere commencement of trial can hardly be a clog in the way of an accused to seek bail particularly, when his case may otherwise be found fit for bail on the observation of further inquiry into his guilt.
In this regard, if any reference is needed, then the case of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 can be referred with advantage.
8. In this view of the matter, I find that case for his enlargement on bail has been made out.
Resultantly, I accept this petition and admit him to bail subject to his furnishing bail bonds to the sum of Rs,100,000 (rupees one lac only) with one surety in the like amount to the satisfaction of the learned Trial Court.
9. However, I may observe here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.