RAJA SAEED AKRAM KHAN, J. --- Validity of the judgment and order passed by the learned Shariat Appellate Bench of the High Court dated 21.6.2019 has been called in question through the instant revision petition, whereby while dismissing the revision petition filed by the accused-petitioner herein, the prayer for concession of bail has been refused.
2. The accused-petitioner is facing trial in the offence falling under Section 10/19, ZHA, on the allegation of abducting Saleema Bibi, respondent No. 2, herein, and committing zina with her. On 2.4.2019, the accused- petitioner moved an application in the Senior Tehsil Criminal Court Muzaf faraba d, which was rejected. Feeling aggrieved, the accused-petitioner approached the Additional District Court Muzaf farabad, for the grant of bail but remained unsuccessful. He also filed a revision petition before the Shariat Appellate Bench of the High Court, which has been rejected through the impugned judgment, hence the instant revision petition.
3. Mr. Farooq Hussain Kashmiri, Advoc ate, counsel for the accused-petitioner , submitted that both the Courts below have failed to discharge their legal duty, while not exercising the discretion in a legal manner . He added that there was a considerable delay in lodging the F.I.R., which makes the case doubtful, as the jelay is always fatal for the prosecution. He further added that in the F.I.R., eight persons were implicated but only the accused-petitioner has been challaned while the others have been discharged under Section 169, Cr.P.C. Moreover , while recording the statement under Section 164, Cr.P.C., the victim has changed her stance, which makes the prosecution story highly doubtful and benefit of this must go to The accused. The learned counsel forcefully argued that nothing has been recovered from the petitioner . In continuation of the arguments, the learned counsel submitted that the witnesses appearing before the trial Court did not support the prosecution version. The learned counsel lastly submitted that the accused-petitioner has falsely been enroped in the case on the basis of previous enmity between the parties over some civil litigation and he has been made the scapegoat in the case while letting the real culprit.
4. On the other hand, Ch. Shaukat Aziz, Advocate and Mr. Ayaz Ahmed, Assistant Advocate-General, while supporting the orders passed by the Courts below , submitted that there is no mala fide to implicate the accused- petitioner in the case in hand, who has committed a heinous offence while blackmailing the victim through video recording. They submitted that challan has already been presented and the trial is in progress. Out of ten witnesses, statements of five material witnesses have been recorded and only the statement of doctor and other official witnesses is yet to be recorded and in such situation, instead of releasing the accused-petitioner on bail, a direction may be issued to the trial Court to conclude the case within short span of time.
5. We have heard the learned counsel for the parties, the learned Assistant Advocate-General and gone through the impugned judgment alongwith the record made available.
6. The accused-petitioner was booked in a case under Section 10/19, ZHA, with the allegation that he had abducted the victim Saleema Bibi, respondent herein, and committed zina-bil-jabr with her. From the record it appears that the complainant remained silent for a considerable time and lodged the F.I.R. at a belated stage, for which no plausible explanation has been brought on the record. Although in such like cases, delay is not always fatal for the prosecution, however , there must be some reasoning for not approaching the concerned investigation agency for initiating the legal proceedings. While making the cursory examination of the record, it appears that originally the victim implicated the ac accused-petitioner and other co-accused, but surprisingly while getting her statement recorded under Section 164, Cr.P.C., she changed her version and only implicated the accused- petitioner , herein. Allegedly , she got pregnant in the result of the occurrence but she never disclosed the fact for a long time for the reasons best known to her. Out of eight accused persons, only the petitioner has been challaned, whereas the others have been discharged, which makes the case one of further inquiry , as envisaged under Section 497(2), Cr .P.C.
7. The burning argument of the counsel for the complainant and the Assistant Advocate-General is that trial is in progress, therefore, the accused-petition er may not be extended the concession of bail at this stage. It may be observed that the commencement of trial does not debar to release an accused person on bail, if he is so entitled,.
The petitioner is behind the bars for more than four months and is not required for further investigation. In such scenario, no useful purpose shall be served while keeping the accused-petitioner in jail for indefinite time. The validity of the statement recorded under Section 164, Cr.P.C., and the report of DNA/medical report shall be determined by the trial Court, as this Court cannot wear the robe of the trial Court. There is plethora of the judgments on the point that mere on the ground of commencement of trial, bail cannot be refused. This Court in the case reported as Shah Zaman v . Ashiq Hussain & another [2017 SCR 415], has observed as under:-- "So far as the contention of the learned Additional Advocate-General, that trial has been commenced and likely to be completed in near future, is concerned, it may be observed here that the commencement of trial does not debar to release the accused on bail when the case of further inquiry is made out this regard, reliance may made on a case reported as Syed Khalid Hussain Shah v. The State and another [2014 SCMR 12], wherein it has been observed as under:- "7. Yes, one of the empties allegedly picked up from the venue of occurrence matched with the pistol alleged to have been recovered at the instance of the petitioner on the third day of the occurrence, but it cannot be over emphasized - when the case, in view of the questions formulated above, calls for further inquiry .
Commencement, of trial., too, cannot come in the way of grant of bail, if in the opinion of the Court, a case for further inquiry is made out. Above all else when ultimate conviction, if any, repairs the wrong caused by mistaken relief of bail it would be rather harsh and even unjust to decline bail to the petitioner in a case entailing sentence which may extend to 10 years."
Thus, the argument of the learned Additional Advocate-General in this regard, being without substance needs no consideration."
Similarly in the case reported as Muhammad Nazir Mir V. The Stale & another [2018 SCR 1155], it has been observed by this Court, as under--- "7. - The main contention of the teamed counsel for the complainant, in opposition of the appeal of the accused appellant, is that the trial is near to completion therefore bail cannot be granted at this stage. It may be stated that if the case of further inquiry is made out then mere on such ground that the trial is in progress or near to completion, the bail cannot be refused. In Sadheer Shah's case (supra), this Court while dealing with the proposition has held that:--
7. The argument of the learned Advocate-General and the counsel for the complainant that the trial is in progress and at this stage the bail application is not entertainable, it may be stated here that the commencement of the trial is no hurdle to grant bail to an accused if the case of further inquiry is made out."
8. As we have reached the conclusion that the petitioner has succeeded to make out the case of further inquiry , therefore, prima facie the prosecution story has become doubtful. It is settled principle of law that the benefit of doubt, even at bail stage, must be extend ed to the accused, as a matter of right. Resultantly the revision petition is accepted and while setting aside the impugned order dated 21.6.2019, the accused petitioner is enlarged on bail subject to furnishing the personal bond of Rs. 500,000/- (five lac rupees) and two sureties of the like amount to the satisfaction of any Judicial Magistrate First Class Muzaf farabad. He shall be immediately released, if not required in any other case.
Before parting with the case, we may observe here that the trial Court is under obligation to decide the cases on merits without being influenced from any observation made by this Court in the bail matters, s those are always tentative in nature.