' SHUJAAT ALI KHAN, J.--- Through this petition, I intend to dispose of this petition as well as Criminal Miscellaneous No,7427-B of 2012 having emanated out of one and the same F.I.R.
2. Ghulam Qadir alias Thraj (petitioner in this petition) and Khalil Ahmad (petitioner in Criminal Miscellaneous No, 7427-B of 2012) have sought post-arrest bail in case F.I.R. No, 603 of 2011 dated 1- 11-2011 registered at Police Station Choochak, District Okara. In respect of the offences under sections 365-B and 376 of P.P.C. Precise allegation against the petitioners, as per F.I.R., is that they abducted the complainant on 10-8-2011, at 12-00 noon, and thereafter committed rape with her.
3. Learned counsel appearing on behalf of Ghulam Qadir alias Thraj, petitioner, argues that there is delay of 81 days in lodging the F.I.R.; that in fact the petitioner contracted marriage with the complainant by virtue of Nikah Nama dated 14-8-2011; that prior to lodging of the F.I.R. The complainant sworn an affidavit that she was never abducted by anybody; that the, petitioner is behind the bars since 6-12-2011 and is no more required for investigation purposes; that the medical examination of the abductee was conducted after 66 days of the alleged occurrence; that the observation of the Medical Officer that there was no mark of violence on the body of the abductee, at firms that she was a consenting party; that the Medical Officer has also opined that possibility of fabrication cannot be ruled out; that there is no direct evidence of Zina; that the so- called witness of the occurrence are residents of a place which is 25-Kilometers away from the place of occurrence, therefore, their presence on the spot at the relevant time is doubtful; that the complainant while making statement under section 164, Cr.P.C. Admitted that she got a divorce from the petitioner on 15-9-2011; that in fact the petitioner handed over the complainant to her parents in view of a compromise arrived between the parties in a Punchayat held under the auspices of Mr. Muhammad Aslam Khan Kharl, MNA and that this is a case of two versions.
4. Learned counsel appearing on behalf of the petitioner in Criminal Miscellaneous No,7427-B of 2012 while adopting the arguments advanced by the learned counsel for the petitioner iri this petition submits that there was no allegation of Zina against the petitioner in the F.I.R. Rather the complainant levelled such allegation against the petitioner while making statement under section 164, Cr.P.C; that co-accused of the petitioner namely Sarfraz and Ashraf have already been declared innocent by the Police; that Ghulam Qadir, co-accused, filed Habeas petition before this court wherein the complainant entered appearance but did not utter even a single word regarding Zina 'with her and that case of the petitioner falls within the ambit of further inquiry. In addition to his oral submissions, learned counsel has relied upon the cases reported as Umer Daraz v. The State (2009 PCr.LJ 1155), Zahid Iqbal v. The State (2009 YLR 356), Kashif alias Kashi v. The State (2009 YLR 1500) and Allah Dittta c. The State (2002 YLR 852).
5. Conversely, learned Additional Prosecutor General, assisted by learned counsel for the complainant, while vehemently opposing these petitions, contends that delay in lodging the F.I.R.
Stands explained in the F.I.R.; that the accused are specifically named; that though initially there was no allegation of Zina against Khalil Ahmad, petitioner, but later on in her statement under section 164., Cr.P.0 the abductee also levelled allegation of Zina against him; that the alleged.
Nikahnama was prepared on 14-8-2011 whereas the occurrence took place on 10-8-2011; that both the petitioners have been found guilty during investigation; that after completion of investigation report under section 173, Cr. P.0 . Has already been submitted; .That the grounds urged by the learned counsel for the petitioners require deeper appreciation of evidence which exercise cannot be resorted to in these proceedings; that the preparation of Nikahnama is doubtful; that the earlier petition (Criminal Miscellaneous No,3800-B of 2012) filed by Khalil Ahmed, petitioner, was dismissed by this Court and no fresh ground is available with him; that Khalil Ahmad, petitioner, has already been issued Show-Cause Notice by the learned Additional Sessions Judge for misusing the pre- arrest bail and in case he is released on bail, there is possibility that he would misuse the same by tinkering with the prosecution evidence.
7. I have heard learned counsel for the parties as well as the learned Additional Prosecutor-General in addition to going through the Police file.
8. Firstly taking up the objection raised by the learned counsel for the complainant that this is the second application on behalf of Khalil Ahmad, petitioner, I am of the view that there is no bar in filing of the second application when the earlier was not decided on merits. Reliance in this regard is placed on the case reported as Muhammad Riaz v. The State (2002 SCM R 184) wherein the august Supreme Court of Pakistan has inter alia held as follows:-- "We are therefore, of the view that withdrawal of a bail application would not mean that its disposal was on merits or the ground had been taken into consideration,' therefore, in our view there is no bar in moving a second bail application after withdrawal of the first one.
' In view of the dictum. Laid down by the august Supreme Court of Pakistan in the fore quoted judgment, the objection raised by learned counsel for the complainant is hereby spurned.
9. Now coming to the merits of the case, I have noted that the alleged occurrence in this case took place on 10-8-2011 whereas the matter was reported to the Police on 1-11-2011. Thus, there is a unexplained delay of more than 80 days.
10. It is important to mention over here that though the abductee reported the matter to the Police on 1-11-2011 but the medical was conducted on 4-11-2011. Under the column of brief history in the medico-legal report it has been mentioned that the complainant was abducted on 10-8-2011 and she came back to her home after 15 days meaning thereby that medical examination of the abductee was conducted after more than 60 days after the complainant came back to her house.
Moreover, the Medical Officer concerned under the relevant column has observed that possibility of fabrication cannot be ruled out.
11. Moreover, a perusal of the statement of the complainant made by her under section 164, Cr.P.C.
Makes it clear that the abductee herself got divorce from Ghulam Qadir, one of the petitioners, on 15-9-2011 which fact, prima facie, constitute that the Nikahnartia was executed between Ghulam Qadir, one of the petitioners, and abductee, veracity whereof would be determined by the learned trial Court after recording evidence of the parties.
12. Further, Ghulam Qadir, petitioner, is behind the bars since 6-12-2011 whereas Khalil Ahmad, petitioner, is languishing in jail since 7-2-2012. Though report under section 173, Cr.P.0 has been submitted, however, the trial has not yet commenced.
The petitioners are no more required for further investigation and their detention in jail for indefinite period would serve no useful purpose.
13. Insofar as the objection raised by the learned counsel for the complainant that Khalil Ahmad, petitioner, has been issued Show-Cause Notice by the learned. Additional Sessions Judge for misuse of pre-arrest bail as he filed successive petitions for bail before arrest by suppressing the factum of the previous one is concerned, suffice it to observe that when the said petitioner has made out a case of further inquiry, the said objection has.No worth.
14. For what has been discussed above, the petitioners Ghulam Qadir alias Thraj (petitioner in this petition) and Khalil Ahmad (petitioner in Criminal Miscellaneous No,7427-B of 2012) have made a case of further inquiry into their guilt within the meaning of section 497(2), Cr.P.C. Consequently, both these petitions are accepted and the petitioners are granted post-arrest bail subject to their furnishing bail bonds in the sum of Rs,2,00,000 (Rupees Two Hundred Thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.
15. Before parting with this order, it is made clear that the observations made in this order are tentative in nature and they shall have no bearing on the outcome of the trial of the case, which, of course, would be decided on the basis of evidence to be adduced by the parties.