' Faqir Hussain complainant got recorded crime case No,386 dated 29-9-1995 at 1-25 a.m. At Police Station Saddar, Rahim Yar Khan under section 456, P.P.C. And under section 10(3)/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with the allegation that on 29-9-1995 at 6-00 p.m. He arrived back to his home from the Bazar after purchasing the household articles. He heard the alarm of his wife Mst. Sajida Bibi. He saw that Doast Muhammad accused-petitioner was making the attempt to forcibly remove the Shalwar of his wife who was struggling and that the Shalwar of Doast Muhammad had been removed. He alleged that Doast Muhammad was attempting to commit Zina-Bil-Jabr with his wife. His alarm attracted Rashid Shah and Muhammad Arshad P.Ws. Who also saw the occurrence. The attempt was made to catch hold of Doast Muhammad who succeeded in making good his escape along with his Shalwar. The petitioner was arrested on 29-9-1995 whose bail plea has been rejected by the Additional Sessions Judge and he has filed this petition in this Court to try his luck to be admitted to bail.
2. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. There is no need to reproduce the arguments in detail which shall stand projected from the following reasons on the basis of which it is being held that it is a case of further inquiry' and that this petitioner is entitled to be admitted to bail:-- "(i) Without prejudice to the merits it is narrated in the F.I.R. That Doast Muhammad was making the effort to forcibly remove the Shalwar of Mst.. Sajida. In view of this aspect of the matter it can safely be expressed that Mst. Sajida was not made naked by Doast Muhammad petitioner-accused who may be liable prima facie under section 354, P.P.C. Which is bailable. For the purpose of the attraction of section 18 read with section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 both the victim and the accused have to be seen without respective Shalwar.
(ii) It is mentioned in the order dated 7-12-1995 passed by the Additional Sessions Judge that Muhammad Arshad and Rashid P.Ws. Did not support the prosecution version who had submitted their affidavits exonerating Doast Muhammad petitioner-accused and whose statements were recorded by the Court on 7-11-1995. However, it was expressed that since Faqir Hussain complainant and Mst. Sajida Bibi victim were supporting the prosecution case the petitioner is not entitled to derive the legal benefit arising out of the affidavits of the aforesaid P.Ws. As rightly pointed out by the learned counsel for the petitioner the reasoning adopted by the lower Court has no support from the yardstick contained in section 497, Cr.P.C. Whereby an accused is to be admitted to bail. In this regard suffice it to express that both Faqir Hussain and Mst. Sajida Bibi are the interested witnesses. The independent witnesses namely Muhammad Arshad and Rashid are not supporting them who have exonerated Doast Muhammad petitioner-accused and thus his involvement has become a question of further inquiry. In this regard the reliance is placed on the dictum enunciated in Allah Baldish v. Nazar Hussain Shah and another 1979 SCM R 137.
(iii) It is surprising that the alleged occurrence took place at 6-00, p.m. On 28-9-1995 and section 456, P.P.C. Has been mentioned in the F.I.R. Without prejudice to the facts of the matter it can safely be expressed that section 451, P.P.C. Is applicable prima facie because the petitioner is alleged to have committed house trespass in order to commit offence punishable with imprisonment. He had not allegedly trespassed the house of the complainant after preparation for hurt, assault or wrongful restraint. Section 451, P.P.C. Is bailable.
3. Holding it to be a fit case I accept this application and admit Doast Muhammad petitioner- accused to bail in the sum of Rs,15,000 with one surety in the like amount to the satisfaction of the trial Court/Duty Magistrate with the direction to appear on every date of hearing during the trial failing which his bail may be cancelled.
4. Copy Dasti subject to payment of usual charges, if desired.