The petitioner seeks post arrest bail in case F.I.R. No. 291/95 dated 19-9-1995 registered at P.S. Musafarkhana under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 on a written complaint of the prosecutrix Mst. Tasleem Bibi.
2. The prosecution case, briefly stated, is that on 19-9-1995 at about 5-30 p.m. The complainant Mst. Tasleem Bibi, who is a married woman and has two sons and a daughter out of her wed-lock with Saeed Ahmad son of Bashir Ahmad, was cutting grass from the field of one Haji Allah Bakhsh son of Malik Allah Yar of the village when all of a sudden, the accused Muhammad Latif son of Haji Muhammad Hassan appeared on the scene with a pistol and instantaneously therewith he kept his hand on her mouth and threatened her that if she made a noise, she would be done to death. He then forcibly untied the string of her Shalwar and started committing Zina-bil-Jabr with her. After he was free, he again extended same threat that in case she made a noise, she would meet dire consequences. He then left her. When he reached a small distance, the complainant raised alarm which attracted Ghulam Hussain son of Qadir Bakhsh and Ghulam Farid son of Mahmood Khan P.Ws. Who were cutting trees nearby. They tried to apprehend Muhammad Latif but the latter threatened them also that in case they went near him, he would shoot them. The complainant reached the Police Station accompanied by her Dewar Hazoor Ahmad for lodging this report.
2. This F.I.R. Was recorded at 7-30 p.m. On the same day. She was medically examined on 20-9- 1995 at 2-45 p.m. No marks of violence on any part of her body were seen.
3. The accused was arrested on 23-9-1995. He applied for post arrest bail on 3-10-1995. This application was, however, dismissed by the learned Additional Sessions Judge, Bahawalpur on 11- 10-1995.
4. On 23-10-1995, the accused moved an application (Criminal Miscellaneous No.741-B-95) for bail, in this Court. On 18-12-1995, the learned counsel for the State contended that the trial had already commenced and as such the bail matter should not be taken up, in order to avoid any observations regarding merits of the case and thus influencing the trial. Both the learned counsel for the petitioner and that of the complainant were at variance in this regard and as such they were directed to submit a copy of the last interim order of the trial Court and the case was directed to be relisted on 19-12-1'995. On that date, the learned counsel for the complainant placed before the Court photostat copies of the interim orders on the order-sheet starting from 15-11-1995 and in view of the settled practice of the Hon'ble Supreme Court not to grant bail when the case is either fixed for trial or the trial has already commenced, I dismissed this application with a direction to the learned trial Court to conclude the trial expeditiously, preferably within a period of two months, from the next date fixed in the case i.e. 9-1-1996. On 23-1-1996, Muhammad Latif moved this second application placing reliance on M. Ismail's case (PLD 1989 SC 585) and alleging that the petitioner's case falls within the purview of section 497(2), Cr.P.C. Calling for further inquiry into his guilt because:---
(i) there was no eye-witness of the occurrence;
(ii) there was no mark of violence on any part of the body of the prosecutrix;
(iii) no incriminating article such as pistol had been recovered from the petitioner during the investigation although he remained on physical remand for a considerable time; and
(iv) there was a long-standing enmity between the family of the petitioner and that of the prosecutrix.
It was also claimed that the petitioner who is a student had to reappear in the subject of Chemistry in the forthcoming Annual Examination 1996 which was his last chance to qualify.
5. The complainant opposed this bail petition tooth and nail and maintained inter alia that the accused did not allow the trial to proceed on one pretext or the other.
6. I have heard the learned counsel for the parties and have given my earnest consideration to the facts of the case after going through both the police file and the judicial record and also the precedents cited at the Bar in the light of the relevant provisions of law.. The petitioner has placed on record Annex. C, D, E, F, G, H, J and K which are copies of the plaints in civil suits and criminal complaints, a cursory glance through which leads one to draw an inference that the possibility of false involvement of the accused cannot altogether be ruled out of consideration. Muhammad Latif accused, his brothers Muhammad Hafeez and Muhammad Amin and their father Haji Muhammad Hassan had brought separate suits for the recovery of damages to the tune of Rs.24,900 each on 25-7-1994 against certain persons for malicious prosecution and Hazoor Ahmad, brother-in---law of the complainant who accompanied her to the police station, was arrayed as defendant No.2 therein (Reference Annexures C, D, E & F). It also appears that it was the claim of the accused Muhammad Latif right from the beginning, even at the time when he was produced before the Ilaqa Magistrate for physical remand on 24-9-1995 that he had in fact been apprehended on the night between 19/20-9-1995 just in order to please the family of the prosecutrix with whom they had previous litigation and enmity.
7. It has then been contended that it was impossible for anyone to commit Zina-bil-Jabr with a grown up woman of 32 years of age without there being any evidence regarding scuffle and without leaving a slightest mark of violence on her entire body. The fact that the pistol with which the petitioner was allegedly armed at the time of the occurrence could not be recovered during the long period of police remand, has also been pressed into service for contending that the allegations of the complainant are false and as such there are no reasonable grounds to believe that the accused-petitioner had committed the offence wi` which he is being charged.
8. The learned counsel for the complainant has, on the other hand, urged that the offence falls within the prohibitory clause and after the earlier application had been dismissed, this second application cannot be entertained and is liable to be dismissed.
9. I propose to take up the points raised at the Bar, for and against, one by one. It is not denied that no P.W. Has so far been examined in this case. It is also correct that in view of what has been laid down in Mst. Nasreen v. Fayyaz Khan (PLD 1991 SC 412), the sole testimony of the victim would be enough for conviction, in case it inspires confidence. It is also conceded with respect that bail should not ordinarily be granted when the case is either fixed for trial or the trial has already commenced as laid down in a number of cases including Gulzar Ahmad and others v. The State (1995 PCr.LJ 1494). But each case has to be considered on its peculiar circumstances and facts and no hard and fast rule can afford the guiding principle. The contention that this second application cannot be entertained in view of the principle laid down in The State v. Zubair and 4 others (PLD 1986 SC 173) carries little force when considered from the angle that merits of the application for bail were not at all looked into. It was held in Ijaz Ali v. The State (PLD 1981 Karachi 484) that fresh application on the ground not put before the Judge or not considered by him was not barred in law. In Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335), it was held that an order passed under section 498, Cr. P.C is not a judgment within the meaning of section 369 of the Code so as to operate as a bar against its alteration or review and that application for bail can be made from time to time on fresh material. It was also observed that in the context of observations made by the Supreme Court, this concession does not necessarily connote that in the absence of any fresh material under no circumstances a second application for bail or for the cancellation of bail already allowed can be entertained. It was so laid down in Amir-ud-Din v. State (PLD 1977 SC 602) that the word 'judgment' does not cover order granting or cancelling the bail. It is, therefore, abundantly clear that this second application is not barred particularly so when the first-was not considered on merits.
10. The assertions in this bail matter particularly that no incriminating article has been recovered, that there is a long-standing enmity between the parties and that there was no mark of violence on the body of the victim also lead me to conclude that there are no reasonable grounds prima facie for believing that the accused had committed the offence falling within prohibitory clause and that there are sufficient grounds for further inquiry into his guilt. When the Court finds that these two essential conditions are satisfied, the accused would become entitled as of right to bail and it cannot be withheld on the ground of practice; because the latter is relatable to exercise of discretion while former is relatable to the exercise of grant of right, as held in the leading judgment re: Muhammad Ismail v. Muhammad Rafiq (PLD 1989 SC 585) and the commencement of the trial would not afford any ground to refuse bail as held in Wali Muhammad.v. The State (1995 PCr.LJ 310) and also Mukhtar Ahmad v. The State (1995 PCr.LJ 1443), following the same principle. The fact that the complainant was not medically examined on the same date i.e. 19-9-1995 and had appeared before the doctor who examined her, on the next day also casts doubt regarding admissibility of the report of the chemical examiner.
For all these reasons I hold that the case of the petitioner is of further inquiry into his guilt and he is entitled to the concession of bail as of right. He is accordingly enlarged on bail subject to his furnishing a bail bond in the sum of D Rs.1,00,000 (one lac) with two sureties in the like amount to the satisfaction of the learned trial court.
11. Needless to state that the observation made herein are tentative in nature and shall not have any adverse effect on the decision of the case on merits.