This is an application for bail on behalf of Ghulam Farid petitioner in a case under section 11 of the Offence of Zina (Enforcement of Hudood ) Ordinance, 1979 registered at Police Station Chiniot vide F. I. R. No. 337 dated 2nd July, 1981. During the investigation sections 16 and 10 of the Ordinance were added.
2. The prosecution case in brief is that on 13th June, 1981 the peti--tioner and others abducted Mst.
Moondan in order that she may be subjected to sexual intercourse by any one and thereafter.
Ghulam Farid petitioner has been committing Zina with her.
The petitioner had earlier applied for bail vide Criminal Misc. No. 3305-B/81 which was dismissed by this Court on 25th January, 1982 The petitioner then filed a petition for Special Leave to Appeal against that order which was converted into appeal. Consequently, the peti--tioner was allowed bail by the Supreme Court on 20th March, 1982. Since in the petition only section 11 of the Ordinance was mentioned, the Supreme Court granted the bail with the observation that :- "We have heard the learned counsel for the petitioner as well as for the State. We do not wish to make any observation which may prejudice the case of either of the parties at the trial. Suffice it to say that there appears to be-reasons for believing that the petitioner is not guilty of offence punishable with death, imprisonment for life or 10 years' R. I. Or more. We, therefore, convert the petition into appeal and allow the same."
3. The observation detailed above indicates that bail was not granted under section 10 of the Ordinance. The petitioner submitted the bail bonds. The `robkar' issued for the release of the petitioner contained only section 11 of the Ordinance, therefore, the Jail autho--rities refused to release the petitioner on the ground that according to the Jail warrants the petitioner was also detained under sections 16 and l0 of the Ordinance. The petitioner, therefore, filed an applica--tion before the Supreme Court for the rectification of the order with the request that he be allowed to add sections 10 and 16 of the Ordi--nance. As stated by the learned counsel for the petitioner, that petition was returned by the Office of the Supreme Court with the direction that the learned Sessions Judge should be moved in the first instance for the grant of bail under sections 16 and 10 of the Ordinance. The petitioner accordingly, moved an application which was dismissed by the Sessions Judge on 8th May, 1982. The petitioner again moved this Court vide Criminal Misc. ' No. 1310-B/82 which was, however, withdrawn on 25th May, 1982 to move a petition before the Supreme Court as the petitioner was granted bail by the Supreme Court. As stated by the learned counsel for the petitioner a second petition for Special Leave to Appeal was moved before the Supreme Court. On 20th June, 1982, the Supreme Court was pleased to direct the petitioner to move for bail in the High Court and get the same decide on merits. Hence this petition.
4. The learned counsel for the petitioner contends that (i) the offence under section 16 of the Ordinance is not punishable with imprisonment for 10 years or more ; (ii) that as for offence under section 10 of the Ordinance, Mst. Moodan having been challaned as a co-accused there is no direct evidence of the commission of Zina---bil-Jabr or Zina by the petitioner with her. Learned State counsel assisted by the learned counsel for the complainant has vehemently opposed this application on the ground that the petition having been twice rejected by this Court, there is no fresh ground to allow bail to the petitioner.
5. While going through the record it came to my notice that the petitioner was arrested on 15th July, 1981 and although has been detained for offences not punishable with death yet the trial has not concluded. The learned State counsel has not been able to point out any act or omission of the accused or any other person acting on his behalf which may have occasioned this delay and as such I am of the opinion that a fresh ground of statutory delay i.e. More than one year has arisen in due course of events which entitle the accused/ petitioner to bail under 3rd proviso to section 497, Cr. P. C.
6. Without making any expression of the opinion lest it may prejudice the merits of the case I release the accused on bail on the ground of statutory delay as stated above. He is accordingly allowed bail subject to his furnishing bail bond in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Chiniot.