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Criminal Miscellaneous No. 849-B of 1983, decided on 4th July, 1983.

---S.497/498--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 16--Bail--Offence of Zina--No direct evidence available to connect accused with commission of offence of Zina--Statement of son of complainant that his mother before her arrest remained in a house with accused not sufficient to conclude that prima facie accused committed Zina with her--Whether fact of case attracting provisions of S. 10 or 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 a matter of further inquiry--Bail granted.

Malik Muhammad Rafiq with Sultan Alam for Petitioner.

Mahar Ashiq Ahmad for the State.

This bail petition is filed on behalf of Muhammad Hayat, petitioner, who stands arrested in a case registered at Police Station Jampur under Article 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as his earlier bail petition was declined by Sessions Judge, Rajanpur on 12th June, 1983.

2. Muhammad Kalim, complainant, reported at Police Station Jampur on 30th April, 1983 that the petitioner was posted as an A.S.[. at Police Station Jampur in the year 1982 and during his stay there he cultivated illicit connection with Mst. Nasreenn, his wife, mother of three children. It is further alleged that in the month of November, 1982, he enticed her away alongwith three children, namely, Muhammad Jamil aged 10/11 years, Naurin Kausar aged 9/10 years and Munazza Naushin aged 3 years, in a wagon No. 6790/VR. The complainant further alleged that when he approached the petitioner for the restoration of his wife the latter told him that he would restore his children to him provided he gives Talaq to Mst. Nasreenn. Having failed in his efforts to get his wife and children back, the complainant lodged an F.I.R. with Jampur police on 30th April, 1983. The petitioner is stated to have been arrested on 26th May, 1983 and is presently lodged in judicial lock-up.

3. Earlier to this Mst. Nasreenn, the abductee in this case had filed Writ Petition No.676/1983 praying that S.H.O. Police Station Jampur, be restrained from harassing her, I disposed of that writ petition by my order, dated 14th May, 1983 observing that since the case was un investigation this Court cannot interfere with the same in exercise writ jurisdiction. After the disposal of that writ petition Mst. Nasreenn allegedly went and joined the investigation but she was interested, an. has since been allowed bail. At the time of her arrest her children were handed over to Muhammad Kalim complainant, their father on 29th May 1983 under the orders of the Magistrate.

4. Learned counsel appearing on behalf of the petitioner has argue that there is no direct evidence to show that the petitioner ever committed Zina with aforesaid abductee Mst. Nasreenn. He further stated that Mst. Nasreenn had obtained ex parte divorce through Court vide judgment any decree dated 30th March, 1983 by Family Judge, Sahiwal. lie next contender: that taking the facts on their face value at the most an offence under section 16 of the Ordinance is made out which is punishable with years' R.I. which does not fall within the prohibitory clause of section 497, Cr.P.C. Therefore it is concluded that there do not exist reasonable grounds to believe that .the petitioner is guilty of committing Zina wit; the abductee.

5. As against this the learned counsel for the State has argued that the petitioner is an influential person who misused his official position while posted as A.S.I. at Police Station Jampur and abducted Mst. Nasreen and kidnapped her children to Mian Channu. He further stated the before his arrest the petitioner was formerly posted as A.S.I. at Police Station Harappa and now at Sahiwal.

6. I have carefully considered the facts and circumstances of the ca se the light of the submissions made by the learned counsel for the parties and I find that there is no direct evidence whatsoever to the effect that the petitioner was seen committing Zina with Mst. Nasreen. However, there is statement of Muhammad Jamil son of the complainant that his mother (the abductee) before her arrest remained in a house with the petitioner but to my mind it is not sufficient to conclude prima facie that the petitioner committed Zina with her. Again, it needs further inquiry as to whether the facts of the case attract the provisions of section 10 or 16 of the Ordinance.

7. In this view of the matter, I allow this petition. The petitioner be released on bail subject to his furnishing a bond in the sum of Rs.10,000 (Rupees ten thousand only) with two sureties each in like amount to the satisfaction of Deputy Registrar of this Court as it is stated that the sureties apprehended danger to their lives at Jampur where the atmosphere is hostile to the petitioner.

M.Y.H. Bail granted.

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