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Criminal Miscellaneous No. 151 of 1983, decided on 2nd April, 1983.

----S. 497-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 5 & 11-Bail-Abductee not charging accused for rape nor for any overt act in her statement under S. 164, Cr. P. C. recorded after four days' police custody - Abductee according to medical report aged 15/16 years-Principal accused already on bail-Accused released on bail in circumstances of case.

Asfandyar Walt v. The State P L D 1.978 Pesh. 38 ; Muhammad Fazal alias Bodi v. The State 1979 S C M R 9; Muhammad Subhan v. The Sate 1981 P Cr. L J 929 ; Muhammad Arshad v. The State 1982 P Cr. L J 727 and Muhammad Ashraf v. State 1983 P Cr. L J 206 ref.

Tariq Parvez Khan for Appellant.

S. Ibne All, Addl. A.-G. for the State.

Muhammad Ishfaq for the Complainant.

Date of hearing : 2nd April, 1983.

This is a bail application on behalf of Muhammad Hayat son of Khan Sher, resident of village Bakhthai, tehsil Nowshera, district Pesha war, who stands charge under section 5/11 Islamic Laws/366, P.P.C. vide F. I. R. No. 17 dated 20th January, 1983, P. S. Pabbi.

2. The accused petitioner applied for bail to the Ilaqa Magistrate but he rejected the same vide order dated 19th February, 1983. He then approached the Court of Session and the learned Additional Sessions Judge, Nowshera, vide order dated 13th March, 1983 also refused him bail. Hence, the present petition.

3. The case against the accused petitioner is that Khan Zamir lodged a report at P. S. Pabbi on 20th January, 1983 at 14.25 hours to the effect that last night he along with his wife Mst. Bajarina and daughter Mst. Raseeda Begum were returning to his home from the house of his maternal uncle Didar Gul, where they had gone to attend the circumcision ceremony of his son; that the complainant was com ing ahead, therefore, he reached his house earlier, followed by his wife but Mst. Raseeda Begum, his daughter, did not reach the house ; that he alongwith his relatives searched for her in the village and other places but she was not found anywhere ; that during search he came to know that Mst. Raseeda Begum aged 11/12 years had been abducted by his cousins, Saeed Gul, Rahat Shah and Muhammad Rayat (the peti tioner), his uncle Khan Khair, aunt Mst. Majjo and Mst. Asalzadgai wife of Saeed Gul; that some time ago uncle and aunt of the complain ant had wanted the hand of Mst. Raseeda Begum for Muhammad Hayat, the petitioner, but the complainant had refused.

4. Learned counsel for the petitioner vehemently argued that there is inordinate delay in lodging the F. I. R.; that the charge against the petitioner is on the basis of information and not that anybody had seen the petitioner while committing the offence; that the co-accused of the petitioners, named in the F. I. R. have been released on bail and the case of the petitioner being identical to them, he is also entitled to bail on the basis of principle of consistency as laid down by the superior Courts ; that the alleged abductee had been recovered and she had given a statement under section 164, Cr. P. C. from which it appears that if at all the petitioner was involved, the abductee was a consenting party and had gone of her own free will ; that the story given by the father of the abductee in the F. I. R. is very unnatural inasmuch as that he entered the house and could not see his daughter being abducted ; that the provisions of Article 5 of the Hudoo3 Ordinance are not appli cable to the facts of the case as there is no allegation of Zina . Similarly the provisions of Article 11 of the Ordinance could not be pressed into service for the reasons that there is no allegation by the abductee in her statement that she was compelled for marriage; that the abductee when recovered was kept in police custody for four days, and, therefore the involvement of the petitioner is a concoction. In support of his arguments the learned counsel for the petitioner cited Asfandyar Wali v. The State (P L D 1978 Pesh. 38) where it has been observed that police is duty bound to record statement of witness no sooner he appears before them-Statement of witness recorded few days after occurrence-Adverse inference to be drawn against prosecution of witness having made statement in line with suggestion of investigation agency. It has also been held in the same authority that statement of witness subjected to restraint-cannot be regarded as voluntary. In the case in hand, the abductee was kept in police custody for four days, where after she made her statement involving the petitioner. Another authority cited by the learned counsel for the petitioner is reported in Muhammad Fazal alias Bodi v. The State (1979 S C M R 9) wherein their Lordships of the Supreme Court have held as under:--

S.467/498-Bail-Principle of consistency---Co-accused attributed same role as that of petitioner released on bail-Petitioner, held, should also be released on bail on principle of requirement of consistency in same case.

In the case in hand, co-accused of the petitioner including Mst, asalzadgai, the star actress of the whole drama, have been admittedly released on bail by the lower forums. The learned counsel for the peti tioner then cited Muhammad Subhan v. The State (1981 P Cr. L J 929) wherein the citation is laid down as under :-

Offence under section 363, P.P.C. read with S. I1 of Zina---Ordinance- Delay in submission of challan by police or recording of evidence--- Good grounds for bail-Held, to demand speedy trial is a recognised right of accused person and if there is delay in submis sion of challan or recording of evidence without any fault on his part, then he is justified in asking for bail---High Court, in circum stances admitting accused petitioner to bail.

Lastly, the learned counsel for the petitioner referred to Muhammad Arshad v. The State (1982 P Cr. L J 727) wherein it has been laid down as under: -

S. 497/498-Offence under sections 10/11 of Zina (Hudood) Ordi nance, 1979-Bail granted by Additional Sessions Judge cancelled on complainant's application High Court admitting petitioner to bail on grounds, that (i) No allegation was made against the petitioner for pressing marriage of abductee with his brother. (ii) There was no allegation of rape against him. (iii) His presence at Karachi was not supported by any documents regarding which abductee admitted that she was forced to sign or thumb mark. (iv) Petitioner was in Jail for last about 61 months.

In the same authority in case of Muhammad Ashraf v. State (1983 P Cr. L J 206) the observation is as under:-

S. 497/498-Bail for offence under section 11 of Zina (Hudood) Ordinance, 1979-Granted in view of S. 164, Cr. P. C. statement of prosecutrix which showed that she was willing party and on ground that her age was said to be 17 years.

After citing the above-mentioned authorities, the learned counsel for the petitioner submitted that in the instant case the abductee has not charged the petitioner for committing rape on her; that according to X-Ray report the abductee is aged between 15/16 years. Therefore, case of the petitioner is arguable for the purposes of bail because he has -not been charged for any overt act by the abductee in her statement recorded under section 164, Cr. P. C. after four days' police custody.

5. Learned counsel for the complainant and Additional Advocate ---General for the State heard and record perused. The learned A. A.-G. rather conceded the arguments of the learned counsel for the petitioner.

Therefore, without touching the merits of the case deeply, I hold that the case of the petitioner needs further inquiry into his guilt and is a fit case for the grant of bail at this stage. As such, while accepting his petition I admit him to bail on his furnishing bail bonds in. the sum of Rs. 20,000 with two sureties for the like amount each, to the satisfac tion of the Ilaqa/Duty Magistrate.

Bail allowed.

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