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Criminal Bail Application No.141 of 1985, decided on 18th February, 1985.

‑‑‑--S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑Bail, grant of‑‑In spite of order of High Court in an earlier bail application, trial Court neither ordering for delivery of copies of statements recorded under S.161, Cr.P.C. to accused nor framing charge‑‑Statement of most material witness consequently also not recorded by trial Court in disregard of order of High Court‑‑Accused being in custody since about seven months‑‑Conduct of prosecution leaving much to be desired‑‑Trial Court, held, was expected to have more control over proceedings than was shown by diary sheet‑‑A case for bail of accused, held further, was made out‑‑Bail granted in circumstances.

Muhammad Rafiq Khanzada for Applicant.

A.A. Mohammadally. Asstt. A.‑G. for the State.

Date of hearing: 18th February, 1985.

This is a bail application filed by the applicant Dr. Buland Iqbal son of Mirza Allah Dad, who is involved in a case under section 10 of the Zina Ordinance, 1979. The applicant is in custody since August, 1984. Previously a Bail Application No.1144/84 had come up before me filed by the applicant and by order dated 28‑11‑1984 I had dismissed the bail application. However, I had observed as follows:‑--

"From the facts it appears that the only main witness is the daughter of the applicant. Probably the result of main case against the applicant will depend on the evidence of his daughter. According to the learned counsel for the applicant, the final challan has been submitted in August, 1984, and the matter has also been referred to the Sessions Court for trial and trial has not yet started. Even the charge has not been framed. It is directed that the trial Court will give preference to this case and after framing charge, when the case is fixed for evidence, one of the first witness, that is to be examined should be Mst. Naima Iqbal, the complainant. After her evidence is recorded, the applicant will be free to move a fresh bail application before trial Court."

Learned counsel has placed a copy of the diary sheet of the learned Additional Sessions Judge, Karachi, in Criminal Case No.1072/84 and it shows that copies of 161, Cr.P.C. statements have not been supplied to the applicant, as apparently these have not been received from the prosecution, charge has not been framed and no witness has been examined after receipt of the copy of the order, dated 28‑11‑1984 passed by me in the previous bail application. On 12‑1‑1985 and 9‑2‑1985, when this case came up before the learned trial Court even the applicant was not produced. The conduct of the prosecution in this matter leaves much to be desired.

In the circumstances of this case, as no evidence has been A recorded and even the statement of Mst. Naima Iqbal, the complainant, has not been recorded and the applicant has been in custody since August, 1984, in my view, a case for bail has been made out by the applicant. The bail is not opposed by the learned Additional Advocate General in the circumstances of this case.

2. Criminal Bail Application No.141 of 1985 is allowed and Dr. Buland Iqbal, the applicant /accused is ordered to be released on bail on his furnishing one surety in the sum of Rs.20,000 with P.R. bond in the like amount to the satisfaction of the trial Court.

3. After the receipt of the order, dated 28‑11‑1984, the learned trial Court was expected to take positive action for seeing to it that the accused /applicant was produced, copies of 161, Cr.P.C. statements supplied to the applicant and the statement of Mst. Naima Iqbal recorded in one or two hearings. It is also surprising that the diary sheet does not show that any one on behalf of the prosecution was present. The trial Court is expected to have more control over the proceedings than is shown by the diary sheet in this case. A copy of this order may be sent to the learned X Additional Sessions Judge, Karachi.

H. A. K. Bail granted.

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