Briefly stated the facts of the case are that on 13th March, 1996 Mst. Nabila, a young lady of about 19/20 years, went to Police Station Yaka Toot, Tehsil and District Peshawar, along with her father namely, Abdul Matin, to lodge report against her husband, i.e., the respondent-accused.
2. It was alleged before the police that on 6-12-1995 the respondent --accused had demanded a sum of Rs.5,000 from her and that, on her refusal, set her on fire. The hue and cry, raised by the petitioner (wife), attracted two persons namely, Rahat and Khalid, who immediately rushed her to the Lady Reading Hospital. She was given medical treatment there and later, remained admitted for only three days. According to her, the respondent-husband also arrived there (hospital) and threatened her with dire consequences and told her not to report the matter to the police. Not only that, the respondent (husband) shifted her back to his house after three days and then kept her there. It was further alleged that after some time, when she had recovered to some extent, she managed to go to her parents' house where she narrated the whole episode to them. Her parents advised her to report the matter to the police immediately. She, therefore, accompanied her father to lodge the report.
3. The petitioner's report was reduced into writing by the Sub-inspector. F.I.R. No. 112 was thus registered under section 324, P.P.C. On 13-3-1996. The petitioner was immediately sent to the Lady Reading Hospital, Peshawar under the escort of Constable Jahangir No. 3188 for medical examination. The Medico-legal Report was prepared by the concerned Medical Officer on 13-2- 1996 (available on the file). The Medical Officer observed that the petitioner had sustained grievous injuries on her face, neck, arms, chest, abdomen as she had been badly burnt. The Medical Officer further observed that, in addition, her back was also burnt.
4. After his arrest, the respondent-accused, applied for bail to Magistrate, Ist Class, Peshawar. The Magistrate vide his order dated 18-3-1996 rejected his bail application.
5. Thereafter, he submitted bail application to the Additional Sessions Judge, Peshawar (Malik Miandad Khan) who, by his order recorded on 4-4.-1996, released him on bail holding that the case against the accused was that of further enquiry. The only ground, which prevailed with the Additional Sessions Judge was that the F.I.R. Was not lodged promptly and that the matter was reported after a delay of about three months as the occurrence took place on 6-12-1995 whereas the report was lodged on 13-3-1996. He was further of the view that no plausible explanation was given by the petitioner for lodging--- the report so late.
6. Aggrieved by the said verdict of the Additional Sessions Judge, the petitioner has filed this petition wherein she has prayed that the bail granted to the respondent be cancelled.
7. Mian Hisamuddin, Advocate learned counsel for the petitioner, Mr. Muhammad Khan Mastikhel, Advocate learned counsel for respondent and Mr. Abdur Rauf Khan Gandapur, Advocate learned counsel-for the State present and heard. Record of the case perused.
8. It is true that the report in this case was filed after a lapse of three months, however, there is nothing on the file to suggest that it was a wilful act. Admittedly the occurrence took place on 6-12- 1995 wherein the petitioner was badly burnt and was immediately rushed to the Lady Reading Hospital for treatment. She remained admitted in the hospital for three days. I am indeed surprised to note as to why the police, posted at the Lady Reading Hospital, did not take notice of the matter at that time. Similarly, the conduct of the doctor, who gave first aid treatment to the petitioner and later, admitted her in the Hospital, cannot be said to be aboveboard as his medical report is missing. I also fail to understand as to why the petitioner, who was burnt badly and had received grievous injuries, was discharged from the Hospital so quickly i.e., within a period of three days. No explanation whatsoever is forthcoming in this respect.
9. On the other hand, I am in complete agreement with the contention of the learned counsel for the petitioner that the petitioner, when was badly burnt by her husband, was immediately rushed to the Lady Reading Hospital where she was admitted and therefore she was not in a position to lodge the report at that time. Thereafter, as is evident from the record, she was "mysteriously" removed from the Hospital and taken to the house of the respondent (husband) and kept there till the time she managed, somehow or the other, to go to her parents' house and narrate the whole episode to them. It may be pointed out that the moment she went out of the clutches of her husband/respondent she wasted no time in approaching the police and reporting the matter. This explanation regarding the delayed report, to my mind, is not only plausible but is also extremely reasonable in the circumstances of this case. If an authority is needed I am supported by a case reported in PLD 1991 Supreme Court page 412 (Mst. Nasreen v. Fayyaz Khan and another) wherein it was observed by their lordships of the Supreme Court as under:--- "There are two elements in the case which have pronouncedly been taken note of by the High Court. One, that the complainant/prosecutrix's testimony alone against the accused in a case of Zina would not be enough to deny the concession of bail as it would not be enough for conviction.
And secondly, that there was unexplained delay of about 2/3 months in 'he lodging of the r I R.
Accordingly, it was treated as a case of 'further enquiryand the respondent was allowed bail.
Prima facie, none of the two grounds already noticed were available to the accused at the. Bail stage. This Court has in a large number of cases arising out of convictions under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 considered the sole testimony of victim as enough for conviction in case it inspires confidence. The second ground regarding delay is also prima facie, not tenable because it was not unexplained delay. The victim's husband being insane was in a jail. He was not available to impregnate her. Obviously the pregnancy mentioned in the F.I.R. Had resulted out of third party copulation. There was enoueh reason for the unsecutrix to keep uiet on the direction and threats of the arr---cP.t but when after few months the circumstantial evidence of Zina started showing itself, she divulged the secret to her mother. There is no need to probe this question any further at this stage. The prima facie explanation for delay being on record the learned Judge in the Hi h Court ems to have ignored or misread it. Lastly, the question of prima facie, opinion about the guilt of the accused under Subsection (1) of section 497(2), Cr.P.C. Was pressed into service. It has been observed time and a ain that there would hardl be a case which would not require ' further en ui ', therefore, this element by itself is no ground for granting bail e under subsection (2) of section 497, Cr.P.C. such order are on the very face illegal which do not fulfil the second condition regarding tentative onmton about the prima facie guilt or otherwise of the accused The learned Judge while exercising discretion, it is to be further remarked, did not apply mind; whether, it was a fit case for exercise of discretion to favour, allegedly, of a person who ruined the life of a young girl, it impregnated her with an illegitimate child, and we have been told by the grandfather of the victim that she died, according to his accusation, on account of this case. "
10. No reason exists and none indeed has been made out as to why the petitioner would involve her husband-respondent falsely for such a diabolic/ develish act. Similarly, no motive has been attributed to the petitioner wife which might have proded/prompted her to have charged her husband --respondent for such a heinous offence falsely especially when she has two minor babies (sons) from the respondent who are still in the custody of the husband.
11. Apart from this the fact that the respondent-husband has (allegedly) ruined the life of the petitioner, a young girl of 19/20 years of age, by burning L her face, ears, neck, chest, etc. Cannot be lost sight of.
12. Accordingly, without dilating upon the merits of the case at this stage I am of the considered view that the respondent was not entitled to be released on bail as reasonable grounds do exist for believing that he is connected with the offence with which he has been charged. The Additional Sessions Judge has patently failed to take judicial notice of these facts and fell in error in releasing him on bail by his order recorded on 4-4-1996. This bail cancellation application is, therefore, accepted and the order of the Additional Sessions Judge dated 4-4-1996, being arbitrary and perverse, is set aside.
13. The respondent is present in the Court, shall be taken into custody and sent to jail forthwith.