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Criminal Miscellaneous No. 2488-B of 1983, decided on 19th December, 1983.

Criminal Procedure Code (V of 1898)--

---S. 497(5)--Application for cancellation--Name of accused not mentioned in First Information Report--Sessions. Judge while granting bail observing that name of accused could not be omitted, from amongst abductors if he had been really there and that enmity existed between parties- Discretion exercised by Sessions Judge in granting bail, held, not injudicious--Application for cancellation of bail dismissed.

Mian Muzaffar Ahmad for Petitioner.

Hafiz Muhammad Sadiq for Respondent No. 1.

Bashir Ahmad Baig for the State.

This is an application for the cancellation of bail which was granted to Adbul Hamid, respondent No. 1 by the learned Additional Sessions Judge, Faisalabad, vide his order, dated 29th of May, 1983, in a case under Sections 11 and 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, registered at Police Station Thikriwala, District Faisalabad, on 24th of April, 1983.

2. The bail was granted to Abdul Hamid, respondent No. 1 on the grounds that he had not been nominated in the F.I.R. that the-version as given in the F.I. R. was at variance with that given by the abductee in her statement under section 164, Cr.P.C. and that the case against him was one which needed further inquiry.

3. The occurrence was reported to the police by Ghulam Mustafa. He alleged that on the night between 23rd/24th of April, 1983, he got up after midnight and saw that his sister, Mst. Aisha Bibi, aged 18/19 years old was not present on her bed. He was already suspecting her character. He picked up a hatchet lying near his cot, woke up Ghulam Murtaza, his brother and both of them set out in search of their sister. When they reached near the village school, they saw Shera, Boota and Yaqoob accused taking away their sister inside the house of Boota. Ghulam Mustafa raised a Lalkara and rushing inside the house of Boota gave a hatchet blow on the back of his sister. Shera accused gave a Lathi blow to Ghulam Murtaza. Ghulam Mustafa gave a hatchet blow to Shera accused who on receipt of an injury ran away. Ghulam Mustafa and Ghulam Murtaza chased and apprehended him. Meanwhile, Muhammad Boota and Muhammad Yaqoob had succeeded in taking away their sister. Leaving Shera in the custody of the village Chowkidar, they ran after the other two accused in order to recover their sister from them but failed. In the F.I.R. there is absolutely no mention of the complicity of Abdul Hamid, respondent No. 1 in the commission of the offence. On 28th April, 1983, i.e. four days after, the registration of the case, the statement of Mst. Aisha, the alleged abductee, was got recorded under section 164, Cr.P.C. She stated that on the night of occurrence after midnight she came out of her house for urination. Four persons who were lying in ambush came there. Abdul Hamid caught hold of her and Boota Gujjar placed a hand on her mouth. All the four accused took her to the house of Boota Gujjar. After a shortwhile, Ghulam Mustafa and Ghulam Murtaza came there. Ghulam Mustafa gave her hatchet blow by mistake on her back. She stated to him that she was not at fault and that she had been forcibly lifted by the accused. A scuffle ensued between her brothers on the one side and ,Boots Gujjar and two other accused on the other. One of the accused gave a Lathi blow on the face of Ghulam Murtaza and Ghulam Mustafa gave a hatchet blow to that accused, after which that accused started running away. Her brothers chased him. Meanwhile, Hamid Arain and Boota Gujjar caught hold of tier and threatening her with it Chhurri took her to the Dera of Umar Din where Hamid committed rape with her. A day before her statement was recorded she some-how escaped and came to the Dera of Riaz Shah Lambardar who produced her before the police.

4. It was observed by the learned Additional Sessions Judge, Faisalabad, in his impugned order that the name of Abdul tumid, respondent No. 1 could not be omitted from among the abductors named. In the F.I.i1. if he had been really there. It wits also brought to the notice of the learned Additional Sessions Judge that there was enmity between the family of Hamid and that of Riaz Shah Lambardar and that Nazar Hussain Shah, father of Riaz Hussain Shah Lambardar, had lodged a report in a murder case against Umar Din, father of Abdul Hamid, respondent No. 1.

5. The learned counsel for the State has admitted that besides one statement of the adbuctee there is no other incriminating evidence against Abdul Hamid, respondent No. 1.

6. In the above circumstances, the discretion exercised by the learned Additional Sessions Judge in granting bail to the respondent is not injudicious and, therefore, there is no ground for interference.

7. In the result, this application is dismissed.

M . Y . H .

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