' Through this application under section 497, Cr.P.C. The petitioners seek bail after arrest in case F.I.R. No,675 of 2001 registered on 9-12-2001 under Articles 3/4 of Prohibition (Enforcement of Hadd)
Order, 1979 under sections 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, under sections 7/21/79 of Surrender of Illicit Arms Ordinance, 1991 and under section 156 of the Customs Act at Police Station Saddar, Depalpur, District Okara on the statement of Riaz Hussain, A.S.-I.
2. The brief facts of the prosecution case are that a raiding party was constituted on receiving a secret information that at the Dera of Muhammad Arif if a raid was conducted huge quantity of liquor could be recovered the petitioners were involved in preparing the liquor and were running a factory. For this purpose the raiding party raided the Dera of the Muhammad Arif-co-accused of the petitioners. Muhammad Iqbal alias Baali was apprehended who was having .32 bore pistols in his right hand. In the Veranda Babar Hussain and Mst. Rukhsar petitioners were found in a naked position at one cot. They were asked to wear the clothes. Both were drunk (petitioners) and Muhammad Arif co-accused while drunk and was being on a bed. From his bed one bottle of foreign made liquor was recovered and one empty bottle of liquor was also recovered. On further search of the bed one rifle. 7 mm in a broken condition and one rifle. .7 mm were recovered. Three drums containing liquor out/of which two drums were full of liquor and 40 empty Kuppis were also recovered in which liquor was sold. Six ounce of liquor was taken out of it and was separated. All these articles were taken into possession. Petitioner No,2 who was apprehended told that she was resident of Depalpur. Muhammad Iqbal had brought her at the Dera of the co-accused Muhammad Arif for illicit pose. Muhammad Arif co-accused also told that petitioner No,2 had been brought for the purpose of Zina after booking her for Rs,2,000. Asghar Khan and Ahmad Khan were also companions according to Muhammad Arif and sold the liquor. Due to this reason case was registered.
3. Learned counsel for the petitioners contends that earlier bail application filed by the petitioners was dismissed through Criminal Miscellaneous No,1497/B of 2002 vide order dated 19-3-2002 and the fresh ground has arisen that the investigation was conducted by D.S.P./S.D.P.O. Circle Okara, according to which petitioners were husband and wife, and it is also found that they are not guilty of the offences under sections 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). It is also contended liquor was not. Recovered from the petitioners and the weapons recovered were licensee weapons and sections 7/21/79 of Surrender of Illicit Arms Ordinance, 1991 have been deleted while only allegation against the petitioners is that they had taken the liquor. It is also contended that Article 11 of the Prohibition Order is not punishable with death or transportation for life and there is no likelihood of the conclusion of the trial in near future. It is also contended that the trial has not been started so far as the direction issued by this Court for speedy conclusion of the trial has not been complied with, hence, the petitioners are entitled to grant of bails.
4. Learned State Counsel has opposed this bail application, of the petitioners vehemently.
5. I have heard the learned counsel for the parties and also perused the record carefully. The earlier bail application was dismissed by this Court vide order dated 19-3-2002 passed in Criminal Miscellaneous No,1497/B of 2002. The only fresh ground is that subsequently, D.S.P./S.D.P.O. Chicle Okara re-investigated the case and found that Nikahnama between the petitioners is genuine.I have gone through the whole record. The petitioners were arrested but they never produced Nikahnama at the time of their arrest and they never claimed that they are husband and wife though they were produced before the Courts by the police. First time plea of Nikah was introduced after one month and 16 days after their arrest. Riaz Hussain, A.S.-I. Conducted the investigation on the direction of this Court on this aspect of this case and vide case diary dated 4-3-2002, he came to the conclusion that plea of Nikah which has never raised for such a long period,and even at the time of arrest' is not believable. Even otherwise, Maqbool Ahmad P.W. Of Nikahnama did not own the signatures on the Nikahnama then he himself cross-examined the "Nikah Khawan" and gave his finding on 4-3-2002: Subsequently, bail application Moved by the petitioners was dismissed by this Court on 19-3-2002. Then some S.-l. Riaz Hussain, for the reasons best known to him on 22-4- 2002 by ignoring the earlier factum of non-relying of Nikahnama, all of a sudden declared that Nikahnama is genuine document and D.S.P./S.D.P.O. Also gave finding in this regard and sections 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) have been deleted, hence finding of the police cannot be considered a fresh ground for the grant of bail to the petitioners on the ground of Nikah with each other. It seems to he after- thought in order to create a defence and to save themselves from conviction. Even otherwise, opinion of the police is not binding on the Courts particularly in this case when some A.S.-I. Has firstly found the Nikah as false and fake and subsequently, some S.-I. Gave the opposite opinion, seems that he has given the second opinion under the pressure of some higher officer, as D.S.P. Immediately, endorsed his opinion without considering the earlier ground taken by him for not relying upon the Nikahnama.
This Court vide order dated 19-3-2002 had directed for the conclusion of the trial within four months but the trial has not been concluded so far as the challan was not submitted by the police due to the pendency of the investigation. Seems that they have tried to get themselves released on the basis of investigation of D.S.P./S.D.P.O. Who deleted the sections 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and recommended for the submission of the challan under Article 11 of the Prohibition Order as both the petitioners were found drunk according to the report of the Chemical Examiner. Learned Magistrate has disagreed with the opinion of the police. Now the challan according to the Investigating Officer has been submitted, hence, delay in the disposal of the trial is due to the efforts made by the petitioners for declaring them innocent by the police. Now that challan has been submitted and non-compliance of the earlier order is not so material that the petitioners should be granted bail on the ground of delay. This ground is also not available to the petitioners. The application for grant of bail to the petitioners is dismissed.
However, the learned trial Court shall conclude the trial, if possible, within six months from the receipt of this order.