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Criminal Bail Application No.430 of 1985,decided on 16th May, 1985.

Criminal Procedure Code (V of 1898)--

---S. 497--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 4 16--Bail, grant of--In her statements recorded under Ss. 161 & 164, Cr.P.C. abductee not alleging rape against petitioners- Petitioners case, held, covered under S. 16 of Ordinance only being punishable with seven years' R.I. and as such prohibition contained in S. 497, Cr.P.C. not attracted to their case--Petitioners allowed bail in circumstances.

Pir Mazharul Haq for Applicants.

A.G. Mangi, A.A.-G. for the State.

Seven applicants, who have applied for bail, are facing trial for offence under section 11 and 16 of Zina Ordinance. It is the case of the prosecution that they abducted Mst. Mithi on 14-3-1985 at nigh, from her house. There were in all 12 culprits out of them four were unidentified persons armed with guns and eight were named including seven applicants and one Ahmed who was subsequently let off by the Police. It is stated that seven applicants were armed with Lathis and hatchets but the weapons are not pin pointed. According to F.I.R. abduction was seen by eye-witnesses complainant Mst. Hayat mother of alleged abductee, Pir Bux, Soomar and Jawan. Alleged abductee Mst. Mithi was recovered on 19-3-1985 from jungle where on arrival of Police party accused persons ran away leaving her behind. She was medically examined on 20-3-1985 and according to the Medical report her hymen was found torn and there were no marks of voilence and no semen was detected. It is the finding of the Doctor that she was used to sexual inter course. Alleged abductee Mst. Mithi in her 161 and 164, Cr.P.C. statements has alleged rape against one applicant only i.e. Hussain. She has not alleged rape against the remaining six applicants. It is submitted by the learned counsel for the applicants that those who have not raped were covered by section 16 of Zina Ordinance which has been made punishable upto seven years as such. prohibition contained in 497, Cr.P.C. will not apply to their case.

In these circumstances I reject the bail application of applicant Hussain for the reason that it is alleged that he has committed rape and admit the remaining six applicants namely Miro, Punhoon, Datt Sarwar, Sono and Darhhon to bail in the sum of Rs.30,000 with one surety and P.R. each in the like amount to the satisfaction of the trial Court.

S.G.D.

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