GHULAM MUSTAFA Versus State

ORDER

IJAZ AHMAD CHAUDHRY, J .--- Through this application under section 497, Cr.P.C. the petitioner seeks post-arrest bail in a case F.I.R. No.427 of 2005, dated 22-7-2005, registered under section 10 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 452/34, P.P.C. at Police Station, Hujra Shah Muqeem District Okara, on the statement of Muhammad Aslam, the complainant.

2. The brief allegation against the petitioner as alleged in the F.I.R. is that on 20-7-2005 he had committed Zina-bil-Jabr with Irshad Bibi, aged 20 years (sister of the complainant).

3. The learned counsel for the petitioner contends that the F.I.R. has been lodged with the delay of three days and medical examination of alleged victim was conducted after 72 hours and report of the Chemical Examiner regarding the vaginal swabs is doubtful; that the petitioner is innocent and has been falsely involved in this case and discharge report was prepared, but the learned Magistrate has disagreed with the discharge report of the police and directed the police to submit report under section 173, Cr.P.C.; that due to declaring of the petitioner as innocent by the police, he has succeeded in making out a case of further inquiry and this application may be accepted and that the alleged victim was not virgin as claimed by her, but she was a girl of easy virtue and is not a reliable witness.

4. The learned counsel for the complainant has opposed this bail petition on the ground that the petitioner was allowed bail by the learned Additional Sessions Judge, but this Court has cancelled the same while accepting the Criminal Miscellaneous No.7664/BC of 2005 of the complainant for cancellation of bail of the petitioner, vide order, dated 30-11-2005 and there is no change in the facts so far and offence falls within the ambit of prohibitory clause of section 497, Cr.P.C.

5. I have heard the arguments advanced by learned counsel for the parties and perused the record with due care and caution.

6. This Court has already discussed the facts of the present case while deciding Criminal Miscellaneous No.7664/BC of 2005 moved by the complainant (Muhammad Aslam) and bail already granted to Ghulam Mustafa (petitioner) by the learned Additional Sessions Judge was cancelled. The following observations were made:---

"Specific allegation has been levelled against respondent No.1 that he had committed Zina with Irshad Bibi sister of the petitioner. During the arguments it has not been stated that there was any mala fide or ulterior motive on the part of the petitioner or the victim to falsely implicate respondent No.1 in the present case. The offence falls within the prohibitory clause of section 497, Cr.P.C. Moreover, the allegation is also corroborated by the report of the Chemical Examiner according to which the vaginal, swabs were found stained with semen. Respondent No.1 is also involved previously in case F.I.R. No.530, dated 20-8-2004, registered under section 12 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 337-A(i), P.P.C. at Police Station Hujra Shah Muqeem District Okara in which the victim had stated that respondent No.1 along with his co-accused had committed unnatural lust with him. There is no cavil to the proposition that for the purpose of grant of bail opinion of the police can be considered if it is based on cogent reasons. In the present case after perusal of the police file I am convinced that the opinion of the police was not based on cogent reasons as it has been repeatedly held by this Court and the august Supreme Court of Pakistan that "Qasim Niah" cannot be made basis for declaring an accused as innocent in the offences of heinous nature or commission of Zina. I find that discretion has not been exercised properly in favour of respondent No.1 by the learned Additional Sessions Judge, Depalpur while granting bail to him as at bail stage only tentative assessment of the evidence on record is to be made, which prima facie makes out a case of heinous nature against respondent No.1. It, has been held by the Honourable Supreme Court in Muhammad Sharif v. Shafqat Hussain alias Shaukat and another 1999 SCMR 338, that no hard and fast' rule can be laid down that bail should not be cancelled merely because the trial has commenced or is likely to commence. The question to be determined would be as to whether a person was entitled to the grant of bail. Hence, this petition is accepted and order, dated 9-8-2005 passed by the learned Additional Sessions Judge, Depalpur is set aside and the bail granted to respondent No.2 is hereby cancelled. He shall be committed to custody forthwith. However, it is clarified that the observations made in this order are tentative assessment of the evidence on record and will not prejudice the case of any of the parties at trial stage."

Through detailed order, the bail of the petitioner was cancelled and subsequently, if any discharge report has been prepared by the police, which even otherwise has not been acceded to by the learned Illaqa Magistrate is not sufficient to hold that the petitioner has succeeded to make out a case of further inquiry as the police had declared the petitioner as innocent only on the basis of "Qasum and Niah" which cannot be given any importance. Even otherwise finding of the police is not binding on the Courts. The serious allegation has been leveled against the petitioner for the commission of Zina. The delay in registration of case is not fatal in such cases as the complainant has to think over hundred times before registration of the case, which involves the honour of the whole family. The petitioner has failed to point out any mala fide on the part of the complainant or the alleged victim for his false implication in the present case. Even otherwise private complaint was filed by the complainant in which charge has been framed and case is now fixed for recording of evidence. Any finding on the facts of the case by this Court may prejudice the case of either party during the trial.

In the above discussion, I do not find any merits in this bail petition and the same is dismissed.

H.B.T./G-34/L Bail refused.