' The petitioner is involved in case F.1.R., No,340 of 1999 which was registered against the petitioner under sections 11/10(2), Offence of Zina (Enforcement of Hadud) Ordinance VII of 1979.
2. The petitioner filed bail after arrest before Additional Sessions Judge, Liaquatpur who dismissed the same vide order dated 10-4-2001. Hence, the present bail petition.
3. Learned counsel of the petitioner submits that the petitioner's co-accused during the investigation were found innocent by the Investigating Officer. The co-accused were granted bail after arrest by the learned Additional Sessions Judge, Liaquatpur vide order dated 19-1-2000. The learned Additional Sessions Judge was erred in law to disallow the concession of bail to the petitioner in violation of principle of consistency. He further urged that the petitioner has been involved in this case falsely on account of malice of the step-mother and brother of abductee Mst.
Rehmat Bibi. He further urged that Mst. Rehmat Bibi is,sui juris, who had performed Nikah with the petitioner with her own sweat-will without any pressure on 10-9-1999. The case was got registered against them on account of performing Nikah by the abductee with the petitioner without consent of her parents. The complainant party has allegedly executed Nikah of Mst. Rehmat Bibi, abductee with one Nasrullah is order to defeat Nikah of the petitioner with abductee by forgery and fraud. He further urged that abductee Mst. Rehmat Bibi filed a suit for jactitation of marriage against said Nasrullah in the Family Court, Multan which is pending adjudication before the Judge Family Court, Rahimyar Khan. He further urged that the petitioner was inflicted injuries by the complainant party with fire-arms and his leg has pellet in it. The condition of the petitioner is very serious. The case has also been registered against the complainant party vide F.I.R. No,430 of 2000. The contents of which reveal that the petitioner was injured by making fires while he was in police custody.
4. Learned counsel of the complainant submits that the petitioner's co-accused were declared innocent by the police; whereas the petitioner was found guilty by the police, therefore, the principle of consistency is not attracted in the present case. He further urged that the petitioner's name is mentioned in the F.I.R. And specific role is attributed to the petitioner. He further submits that Medical Superintendent District Jail has referred the matter to M.S. Sh. Zaid Hospital, Rahimyar Khan for the treatment of the petitioner, therefore, the petitioner is not entitled to the concession of bail on medical ground.
5. Learned Additional Advocate-General under instructions submits that challan has not yet been submitted in the Court in view of certain defects pointed out by the District Attorney and the file is pending before him. The challan will be submitted immediately as and when the District Attorney Rahimyar Khan finalizes the matter. He further submits that the name of the petitioner is mentioned in the F.I.R. With specific role. He further submits that the petitioner is not suffered in serious disease and is not entitled for concession of bail on the medical ground. He summed up his arguments after perusing the police file that the petitioner is found guilty by Investigating Officer after recording the statements under section 161, Cr.P.C.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
7. It is better and appropriate to re-produce the admitted fact between the parties:--
(i) F.I.R. Was lodged on 23-10-1999.
(ii) The petitioner was arrested by the police:
(iii) The Investigating Officer has found the petitioner guilty.
This fact is also admitted that name of the petitioner is mentioned in the F.I.R. And specific role is attributed to him and with specific motive to abduct the abductee Mst. Rehmat Bibi (daughter of the complainant). The petitioner was armed with gun and victim was abducted by the petitioner. It is also admitted fact that Investigating Officer has recorded the statement under section 161, Cr.P.C.
Which connected the petitioner with the commission of offence. The abdcutee has executed Nikah with consent of her parents with one Nasrullah on 17-7-1999; whereas the petitioner allegedly executed Nikah with abductee on 10-9-1999. In case, aforesaid facts are put in juxtaposition, then it will become crystal clear that Nikah of the petitioner was performed subsequently in the presence of existence of previous Nikah. It is settled principle of law that Second Nikah cannot be performed without obtaining divorce from Nasrullah in accordance with Injunction of Islam. This fact establishes that the petitioner is guilty of offence of Zina. The abductee has filed suit for jactitation against Nasrullah before the Judge Family Court, Multan and the plaint was returned to abductee under Order VII, rule 10, C.P.C. For its presentation before the competent Court of jurisdiction, if so advised vide order dated 24-4-2000. The abductee allegedly filed a suit for jactitation before the Judge Family Court, Rahimyar Khan which is pending adjudication. Mere filing of suit for jactitation before the Judge Family Court, is not a ground to grant of bail to the petitioner. The principle of consistency is also not attracted in the present case as the co-accused were granted bail by the learned Additional Sessions Judge, vide order dated 1-9-2000 as the co-accused were found innocent by Investigating Officer, whereas the petitioner is found guilty. The Medical Officer, District Jail, Rahimyar Khan, has referred the matter to Sh. Zaid Hospital for the treatment of the petitioner so the medical ground is also not available to the petitioner as per principle laid down by the Hon'ble Supreme Court in case "Zareen Khan. v. The State" (1980 SCM R 305).
8. The Administrator Sh. Zaid Hospital, Rahimyar Khan is directed to constitute a board to find out the health of the petitioner. He is directed to do the needful within 15 days positively. In case Board is constituted by Administrator Sh: Zahid Hospital, Rahimyar Khan finds in favour of the petitioner, then the petitioner is well within his right to file fresh application for bail on medical ground.
9. However, there are certain other salient features of this case which are re-produced hereunder in choronological order. The F.I.R. Was lodged on 23-10-1999 and the challan has been submitted as stated by Ghulam Murtaza, Sub-Inspector of police 25-9-2000 in Criminal Miscellaneous No,802/B of 2000 filed by co-accused Dur Muhammad. Hamad Mukhtar, Inspector, Investigating Officer today in the Court submitted that the challan has not yet been submitted in the Court as the same is pending before the District Attorney, Rahimyar Khan for finalization of the case. This fact brings the case in the area that Investigating Agency failed to perform its statutory duty. The poor citizens shall be penalized by in action of Investigating Agency. It appears that either Ghulam Murtaza, Sub-Inspector has wrongly stated before this Court on 25-9-2000 that the challan has been submitted before the Court or. Hamad Mukhtar, Inspector, Investigating Officer.
10. In this view of the matter, copy of the order is sent to the Deputy Inspector-General, Police Bahawalpur, who is directed to constitute a committee to probe into the matter to find out who is responsible officer or official on whose inaction, the challan was not submitted in the Court till date when the F.I.R. Was recorded on 23-10-1999. In case, the Committee finds any Officer/Official is responsible for mischief, then he is directed to take action against him under Efficiency and Discipline Rules. He is further directed to finalize the matter within 3 months. He is further directed to submit his report to the Deputy Registrar (Judicial) of this Court within stipulated period. In case, the challan has not already been submitted as narrated by Investigating Officer then S.S.P.
Concerned is directed to ensure that the challan shall be submitted in the Court positively within three weeks after receiving the order of this Court.
11. Office is also directed to send copy of this order to Inspector-General Police and Chief Secretary of the Punjab for information, who are directed to look into the matter as to malpractices of their departments.
In view of what has been discussed above, this bail petition has no merit and the same is dismissed with the aforesaid observations.