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Criminal Miscellaneous No. 307/CB of 1986, decided on 28th May, 1986.

‑‑‑S. 497(5)‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10‑a‑Bail, .cancellation of‑‑Two days' delay in lodging F.I.R.‑‑‑Twenty‑nine persons appearing in defence, supporting plea of alibi‑ ‑Nikahnama bearing signatures of accused as witness to Nikah, registered on day of occurrence at far‑off place, produced‑‑Number of persons submitting their affidavits about innocence of accused‑‑None of witnesses having‑-seen commission of Zina‑‑Prosecutrix disbelieved during investigation, qua‑second accused, declared innocent‑‑Grounds weighing with Sessions .fudge while granting pre‑arrest bail; indicating prima facie possibility of false‑implication of accused, held, would constitute mala fide on the part of the complainant‑‑Exercise of discretion in granting pre‑arrest bail to accused did not violate principles laid down by superior Courts‑‑Bail declined to be cancelled in circumstances.

Altaf Ibrahim Qureshi for ‑Petitioner.

Mian Bashir Ahmad Bhatti‑ for Respondents.

Sardar M. Rafiq Khan for the State.

Mst. Zarina Mai, complainant, has made the instant petition praying for the cancellation of pre‑arrest bail granted to Maqsood alias Masoo, respondent, by Additional Sessions Judge‑III, Muzaffargarh, on 24‑3‑1986.

2. According to the petitioner, she went out of her house on 8‑12‑1985 at Ishawela for easing herself. She was about to sit on her haunches when Maqsood alias Masoo, respondent, and his co‑accused Abdul Sattar (since declared innocent) emerged there and forced her to submit to their carnal desire. She resisted whereupon Maqsood alias Masoo, respondent, allegedly gave her Soti blows and then both Abdul Sattar and Maqsood committed rape with her one after the other. Meanwhile her husband Ghulam Shabbir and P.Ws. Faqir Muhammad and Ashfaq came there and saw in the torch light the respondent and his co‑accused Abdul Sattar running away from the scene. She was then got medically examined the next day and still a day later the instant F.I.R. was lodged by Mst. Zarina herself at Police Station Qureshi, District Muzaffargarh. During the invesitgation, number of persons appeared in the defence of both the accused persons. Some of them had supported the plea of alibi raised by Maqsood, respondent, that he attended a marriage party of Muhammad Tufail with Surayya Bibi at Dholewala in district Bahawainagar on the day of occurrence and that he signed the Nikahnama as Vakil of the bridegroom. In police investigation Abdul Sattar was found innocent but the respondent was challaned.

3. The accused/ respondent applied for the grant of pre‑arrest bail in the Court of Additional Sessins Judge, Muzaffargarh, who having observed that none of the eye‑witnesses cited in the F.I.R. saw the respondent committing Zina with the petitioner; that number of persons appeared during the investigation in support of the plea of alibi raised by the respondent and some of them also swore affidavits to the effect that the respondent was present on the night of 8‑12‑1985 attending marriage in Bahawalnagar district; and that the private complaint filed by the complainant contained a story different to the one given in the F.I.H. and thus was persuaded to allow pre‑arrest bail to the accused/ respondent. Feeling aggrieved, the instant petition has been filed.

4. It is contended on behalf of the petitioner that learned Additional Sessions Judge fell in error by granting pre‑arrest bail to the respondent against whom serious allegation of rape has been levelled particularly when learned Additional Sessions Judge has not found that the complainant (petitioner) was prompted by mala fide considerations in bringing the instant case against the respondent. In the circumstances, it is urged, that the bail granting order is liable to be struck down. It is further contended that the respondent and his co‑accused Abdul Sattar issued threats to Ghulam Shabbir, husband of the complainant, that if his wife did not resile from her statement in the case, they would take revenge from them. It is, therefore, urged that the respondent has misused the concession of bail, so he is not entitled to remain on bail. As against this, learned counsel appearing on behalf of the respondent has supported the impugned order.

5. I have carefully considered facts and circumstances of the case and also perused the relevant record.

6. Admittedly, there is two days' delay in lodging the F.I.R. About 29 persons appeared in defence of the respondent during the investigation and supported his plea of alibi. Learned counsel for the respondent has produced a copy of Nikahnama, dated 8‑12‑1985 registered in district Bahawalnagar which bears signature of the respondent as witness to the said Nikah. Number of persons also submitted their affidavits in the Court of Additional Sessions Judge and deposed about the innocence of the respondent. Again, none of the witnesses, namely, Ghulam Shabbir (husband of the petitioner/ prosecutrix) Faqir Muhammad and Ashfaq had seen the respondent committing Zina with the complainant. They rather saw him running away alongwith Abdul Sattar from the spot. Furthermore, the prosecutrix has been disbelieved during investigation qua Abdul Sattar, who has been declared innocent. It is true that learned Additional Sessions Judge while granting pre‑arrest bail to the respondent has not specifically held, in so many words, that the instant case was brought by the prosecutrix against the respondent on account of mala fide considerations but nevertheless the aforementioned grounds. which weighed with learned Additional Sessions Judge do indicate prima facie a possibility of false implication of the respondent which constitutes male fide on the part of complainant. In these circumstances, I am of the view that learned Additional Sessions Judge by having grantee pre‑arrest bail to the respondent did not violate principles laid down by the superior Courts in such like cases, rather the exercise of discretion by him appears to me as proper. As for ‑misuse of concession of bail by the respondent, I find that the allegation is of stereotype nature. The story that Abdul Sattar (since declared innocent) had also gone with the respondent and issued threats to the husband of the petitioner appears to be absolutely absurd.

7. In the result this petition being without merit is hereby dismissed.

S.A./Z‑4/L Bail cancellation declined.

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