Syed Faiz A.I Shah who is involved in a criminal case under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, arising out of F.I.R. No95, dated 14-9-1987 registered at Police Station Naushera, District Khushab, has sought to be admitted to bail.
2. The allegations against the petitioner are that he developed illicit relations with Mst. Mumtaz Akhtar wife of Sher Muhammad, the complainant and abducted her on 12-9-1987. Thereafter, he subjected her to Zina.
3. Previously the petitioner sought to be admitted to anticipatory bail through Criminal Miscellaneous No.3355/B of 1987, but his bail application was dismissed on 21-12-1987.
Subsequently the petitioner sought to be released on medical ground but his application failed and was dismissed on 28-9-1988. Through the under consideration petition, release on bail has been sought on statutory ground.
4. It has been maintained that the petitioner was arrested on 21-12-1987 and a period of more than one year has elapsed but his trial has not yet been concluded. He has thus earned statutory right for being released on bail under clause (a) of 3rd Proviso of section 497(1), Cr.P.C. The relevant provisions read:--" provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by air act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail, who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded".
5. On behalf of the petitioner uncertified photo copy of the interim orders passed by the trial Court has been produced. It transpires from the contents of the photo copy that the challan in this case was submitted on 20-9-1988. On 29-9-1998 an application on behalf of the petitioner for stay of proceedings was held. After hearing the arguments of both the parties, that application was dismissed on 22-10-1988. On a subsequent date i.e. On 20-12-1988 it was reported that the petitioner was ailing, therefore, the case was adjourned to 2-1-1989. Evidence of the prosecution has been concluded on 20-2-1989. Statement of the petitioner under section 3-12, Cr.P.C. Was recorded on 5-3-1)89. The petitioner submitted list of 23 witnesses to be produced in defence. In the meantime, the petitioner filed an application for slay of proceedings before the learned Federal Shariat Court. The said learned Court admitted the petitioner's application for regular hearing on 26-3-1989 and also staved the proceedings of the criminal case pending against the petitioner before the learned Additional Sessions Judge, Khushab. Thus, the proceedings before the trial Court stand stayed under the orders of the learned Federal Shariat Court. The petitioner also moved the learned Federal Shariat Court for hail lout the said learned Court advised the petitioner to move the trial Court for hall after arrest. His application for bail before the trial Court has been dismissed on 6-4-1989.
6. It transpires from the above facts that actually the conclusion of the trial before the learned trial Court has been delayed on account of the acts of the petitioner. He applied before the trial Court for stay of proceedings and a period of couple of months was consumed in disposing of that application. Subsequently after the prosecution evidence was closed and alter statement of the petitioner p under section 3-12, Cr.P.C. Was recorded, the petitioner moved the learned Federal Shariat Court for staff of proceeding, and proceedings have actually been stayed by the learned Federal Shariat. In the circumstances the declare in the conclusion of the trial of the petitioner has been occasioned by the acts of the petitioner himself. He is therefore not entitled to avail the provisions of 3rd proviso to subsection (1) of section 497, Cr.P.C.
7. In this view of the matter the present hail application is dismissed.
S.A./F-142/L