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Criminal Miscellaneous No. 2647-B of 1982, decided on 14th November 1982.

-- S. 498 and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss., 10 & 11-Bail-Abductee not charging accused with commission of Zina in her statement before Police--Case of petitioner prima facie being divergent with version given in First Information Report and requiring further inquiry, petitioner, held, entitled to grant of bail.

-- S. 498 and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16 - Bait-Petitioner not charged for offence of rape and his case falling within mischief of S. 16 of Ordinance-Question as to whether prosecutrix major or minor at time of occurrence requiring further inquiry - Petitioner, held, entitled to grant of bail.

-- S. 497/498 and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & -11--Bail-Divergent statement made by prosecutrix before Police and -in affidavit filed before Magistrate-Case requiring further inquiry-Age of prosecutrix stated by Radiologist over 16 years- Petitioner, held, entitled to grant of bail.

Sh. Khalil -ur-Rehman for Petitioner.

Yahya Saleem for the State.

Abdul Sattar Chughtai for the Complainant.

Date of hearing : 14th November, 1982.

This order shall dispose of Cr. Miscellaneous Nos. 264-B/82, 2762/B/82 and 2763, B/82. They all arise as a result of registration of a case under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), vide F. I. R. No. 180, dated 17th September, 1982 lodged by .one, Muhammad Iqbal, at Police Station, Shalimar, Lahore, on the allegations that the two daughters of the complainant, namely, Mst. Musarrat Shaheen and Mst. Shagufta Bano were abducted by onC, Javed Shah and Zahid Hussain petitioners.

2. This prosecution story in nutshell is that the procecutrix Mst. Musarrat Shaheen and Mst. Shagufta Bano were enticed away by Javed Shah and Zahid Hussain co-accused with the intention of abduction and committing zina. They were allegedly lodged in the house of Muhammad Hussain, co-accused, where they were brought by one of their friends, namely, Najam Hameed and it was Muhammad Hussain who allegedly forcibly got the Nikah of Mst: Musarrat Shaheen performed with Najam Hameed.

3. I have perused the police file and examined the statements of the P. Ws. namely, Mst. Shagufta Bano, Mst. Musarrat Shaheen, Bilal and Anwar Zeb recorded under section 161, Cr. P. C. with the assistance of the learned counsel for the parties. According to the F. 1. R., Zahid Hussain and other co-accused, namely, Javed abducted the two minor girls and also committed Zina with them. The abductees, however, have no where stated before the Police in their statements under section 161, Cr. P. C. that any zina was committed by Zahid Hussain. The case o Zahid Hussain, prima facie being divergent with the version given in the A F. I. R., falls for further inquiry as contemplated by section. 497(2), Cr. P. C. and on this short ground alone he is entitled to bail.

4. As regards Muhammad Hussain, co-accused, the main allegation against him is that he was one of the signatories to the nikahnama and forcibly got the nikah of Mst. Musarrat Shaheen performed with Najam Hameed. There is no allegation of rape against him and, therefore, at best, according to the learned counsel for the petitioner, his case falls within the mischief of section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) which prescribes maximum punishment for a period not exceeding seven years and, therefore, the application of the petitioner for bail is not hit by the provision of subsection (1) of section 497, Cr. P. C. Furthermore, according to the medical examination conducted by the Medical Superintendent of the Services Hospital on 13th September, 1982 the age of Mst. Shagufta Bano was 18 years whereas according to the Radiologist's report conducted at the instance of the police, her age as between 15/16 years and according to the School Leaving Certificate it is 14 years. This being so, the question as to whether the prosecutrix was major or minor at the time of the occurrence is C matter which requires further inquiry and, therefore, Muhammad Hussain, co-accused, is also entitled to bail.

5. As regards Najam Hameed, co-accused, it is correct that Mst. Mussarrat Shaheen specifically stated in her statement under section 161, Cr. P. C. that Najam Hameed committed zina with her but in her state ment before the Magistrate recorded under section 164, Cr. P. C. (Annexure B to Cr. Miscellaneous No. 2763/P/82), the prosecutrix gave her age as 21 years and also filed an affidavit 16th September, 1982- before the Ilaqa Magistrate, Mughalpura, Lahore, that she voluntarily wanted to marry with Najam Hameed. Her affidavit was duly attested by the Ilaqa Magistrate and her statement was also recorded on the reverse of her affidavit. Subsequently, it is alleged that Najam Hameed entered into marriage on the same day with Mst. Musarrat Shaheen in consideration of Rs. 10,000 as dower. It is submitted by the learned counsel for the petitioner that the prosecutrix made her statement before the Police under the influence of her parents and that, in any case, in view of the divergent statement made before the Police and the affidavit earlier filed by her before the Magistrate and the statement given by her before the Magistrate, the case requires further inquiry and on this short ground alone Naja Hameed is also entitled to the concession of bail. Learned counsel for the complainant vehemently contested the grant of bail to all the accused on the ground that they have been specifically named in the F. I. R. and therefore, not entitled to any concession of bail in view of the heinousness of the crime. It is further stated that in any case Najam Hameed, co -accused is not entitled to concession of bail, in that the statement (Annexure B) recorded by the Magistrate was not strictly in conformity with the provisions of section 164, Cr. P. C. The question as to what is the effect of the divergent statement made by the prosecuttix is a matter which requires further inquiry. The age of Mst. Musarrat Shaheen, even according to the Radiologist's report, conducted at the instance of the Police, is over 16 years and, therefore, prima facie., it will be difficult to hold while tentatively appreciating the prosecution evidence on record that she was a minor. Thus visualized, Najam Hameed is also entitled to the concession of bail.

6. For the reasons stated above, the bail applications of all the co -accused, namely, Zahid Hussain, Muhammad Hussain and Najam Hameed are allowed. They shall be released on bail subject to their furnishing bail bonds in the sum of Rs. 25,000 (Rupees twenty-five thousand) only each with two sureties in the like amount each to the satisfaction of Assistant Commissioner Cantt.. Lahore.

Bail granted

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