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Criminal Miscellaneous No. 389/B of 1983, decided on 23rd February, 1983.

---S. 497/498--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10--Bail--Offence of Zina--Accused not named in First informa tion report --Prosecutrix identifying accused by looking at his face instead of his voice as claimed by her in first information report according to which accused muffled their faces while in house of prosecutrix--Accused a young man having a young wife and prosecutrix an old lady of double the age of accused having no sex appeal for him--Bail granted.

Ghaus Muhammad Chaudhary for Petitioner.

M.Sharif for the State.

Ghulam Sarwar Chaudhary for Complainant.

Asghar Ali petitioner who is involved in a case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 arising out of F.I.R. No. 468/82, dated 22nd September, 1982 of Police Station Sadar Sheikhupura, seeks through this petition to be released on bail.

2. It is alleged in the F.I.R. that during the night between 20th/21st September, 1982 at about one seven persons with muffled faces trespassed into the compound of the house of Mst. Fazeelat Bibi, a widowed lady, aged about 50 years having five children of ages ranging between 10/12 to 26/27 years. The intruders muffled the mouth and eyes of the prosecutrix with a piece of cloth and lifted her to the room of her residential house where she was made to lie on a cot. Four out of seven intruders committed rape on her, one by one. Thereafter, they made good their escape. The prosecutrix and her children raised alarm whereupon Mst. Salima Bibi, sister of the prosecutrix living in the neighbouring house, came to the spot. The prosecutrix claimed that she can identify. the offenders by their voices.

3. Asghar Ali petitioner is alleged to have been identified as one of the culprits who subjected Mst. Fazeelat Bibi to 'Zina-bil-Jabr' during the test identification parade by Mst. Fazeelat Bibi, Mst. Salima Bibi and Mst. Roheela, a daughter of the prosecutrix aged 15/16 years.

4. It is contended on behalf of the petitioner that he . is neither named in the F.I.R., nor there is any other evidence connecting him with the offence. As already observed, Mst. Fazeelat Bibi, the prosecutrix claimed in the F.I.R. that she would be able to identify the culprits by their voices but according to the proceedings of the test identification parade she has identified the petitioner not with the help of his voice but by looking at his face. Mst. Salima Bibi, the sister of the prosecutrix and Mst. Roheela, her daughter, in their statement under section 161 , Cr.P.C. claimed that they saw the culprits while running away and that they would be able to identify them if they were produced before them. This claim of theirs is contradicted by the F.I.R. according to the contents whereof the intruders trespassed into the compound of the house with muffled faces. Moreover, the petitioner as also Mst. Salima Bibi and Mst. Roheela are residents of the same village. If the petitioner at the time of making, good his escape was not with a muffled face, these two witnesses could easily identify him as Asghar Ali, their co-villager, and could name him in their statement under section 161, Cr.P.C. The petitioner is a young man of about 25 years having a young wife. The prosecutrix, a, 50 years old lady, could not have any sex appeal for him.

5. In the light of the above circumstances, and in view of the peculiar allegations against the petitioner who is not named in the F.I.R., he is admitted to bail in the sum of Rs. 25,000 with one surety in the like amount to the satisfaction of A.C., Sheikhupura.

M. Y. H. Bail granted.

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