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Criminal Miscellaneous No.497/B of 1986, decided on 14th June, 1986.

---S.497--Penal Code (XLV of 1860), S.302--Bail, grant of--Accused behind bars for more 'than two years--Investigation still going on--Trial not in sight--Nothing incriminating found against accused so far- Long-standing enmity between parties--Inordinate delay in investigation coupled with other grounds making case that of further inquiry--Accused granted bail in circumstances.

Akhtar Hussain Awan, Bar-at-Law for Petitioner.

Farooq Bedar,A.A.-G. assisted by C.M. Latif for the State.

Zulfiqar Ali son of Muhammad Ismail, alongwith Mustafa son of Yaqoob and Nazir a son of Lal Din, was arrested for the murder of Used Ahmed son of Muhammad Shaft. The murder was alleged to have taken place on 11-4-1984 at Asar time inside the bath of the mosque in village Tokrian, Tehail and District Gujranwala.

2. The prosecution case is that the three accused, who were armed with lethal weapons, attacked Saeed Ahmed. Zulfiqar had carbine, Muatafa revolver and Nazir a shot gun. The fatal shot is attributed to Zulfiqar.

Motive was that 16 years prior to this incident, there was dispute of land between Ismail, father of the petitioner, and others on one aide and the complainant party 'on the other. This led to the murder of petitioner's father, his two uncles and grandmother. The accused in order to avenge the aforesaid murders had killed Saeed Ahmad.

The bail application of Zulfiqar Ali was dismissed by an Additional Sessions Judge, Gujranwala by order, dated 16-1-1986. He has now moved this Court for bail.

After notice had been issued in this petition, learned counsel for the petitioner requested for time to file additional grounds. The additional grounds were filed twice.

3. Initially the case was investigated by the local police. During that period, the investigation changed hands many times from one officer to another. Finally, it was entrusted to the Crimes Branch. Khadim Hussain Shah D.S.P. is, now incharge of the investigation.

4. Learned counsel for the petitioner took number of the pleas i support of this petition. At first he argued that the case against the petitioner was false. There was long-standing enmity between the complainant and the petitioner because of the aforesaid murders in which the complainant was sentenced to death by the Sessions Judge, Gujranwala by his judgment, dated 10-11-1969. The death sentence was, however, commuted to life imprisonment by the High Court.

The other ground taken by the learned counsel for the petitioner was Rehmat Ali, paternal-uncle of Saeed Ahmad was inimical to Saeed Ahmad and his brothers, who were tried for the murder of Hamidan Bibi, daughter of Rehmat Ali, but were acquitted. Hence there was every possibility that Saeed Ahmad was killed either by his uncle or at his instance.

It was next contended that as Saeed Ahmad suspected attack from the side of Rehmat Ali, he was always armed. Even on the day of occurrence, he was carrying a carbine which went off accidently and resulted in his death.

Last of all, learned counsel argued that the petitioner was arrested on 15-5-1984 and since then he is behind the bars.

5. The A.A.-G. opposed the grant of bail because of the part assigned to the petitioner.

On previous dates, complainant's counsel used to appear. He too vehemently opposed the bail, but today he did not turn up.

6. On 14-5-1986, Khadim Hussain Shah D.S.P., Crimes Branch appeared before me. He submitted that the case was entrusted to him, on 29-4-1986. He needed some time to complete the investigation. The case was adjourned to 2-6-1986 when again the D.S.P. 'requested for' more time. The case was accordingly adjourned to 14-6-1986. Today, again,- the D.S.P. submitted that still he has not been aisle to complete the investigation, but nothing incriminating has been found against the petitioner in the investigation so far conducted by him. He has yet to submit his final report 'to the Inspector-General of Police, Punjab.

7. The prosecution had enough time to finalise the investigation. It is not possible for me to go on giving adjournments. I have, therefore, decided to dispose of this petition on merits.

It is not possible for the prosecution to deny certain facts. One of those is that the petitioner is behind the bars since May, 1984. As submitted by the D.S.P., the investigation is still going on, but it is not known when it is likely to be finalised. The trial is not in sight.

The petitioner is in jail for more than two years. This inordinate delay is sufficient to allow bail to the petitioner. Not only on this ground, but also on other contentions raised by the learned counsel since the case against the petitioner is one which calls for further inquiry, the petitioner is entitled to bail.

I, therefore, admit the petitioner to bail in the sum of Rs.50,000 (Fifty thousand) with two sureties in the like amount to the satisfaction of Assistant Commissioner, Gujranwala.

S. A. Bail allowed.

Criminal Appeal No.55lI of 1985, decided on 29th May, 1985.

---S.10(2)--Ocular evidence, appreciation of--Complainant disbelieved as to abduction of girl- -Co-accused acquitted of charge of abduction--No evidence available on record to support complainant--Nikah solemnized between two accused--Both accused having attained majority--Girl found pregnant by 14 weeks--Nikah having taken place within 91 days--Doctor admitting possibility of difference of one week while computing time of pregnancy--Evidence of expert making pregnancy possible due to valid and legal marriage--No other reliable evidence, available on record to prove commission of Zina--Evidence on record being most inadequate and doubtful, conviction and sentence of both accused set aside.

Syed Ehsan Qadir Shah and Ehtesham Qadir for Appellants.

Muhammad Shahnawaz Khan for the State.

Date of hearing: 29th May, 1985.

--The two appellants, alongwith Hakim Khan son of Allah Ditta, Ali Khan son of Said Amir, Muhammad Zaman son of Ahmad Khan, Habibullah son of Dost Muhammad, Bahadur Khan son of Amir and Mst. Sahib Khatoon widow of Dost Muhammad, were tried by the Additional Sessions Judge, Khushab,--the two appellants for an offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), whereas the other six accused persons whose names were mentioned in Column No.2 of Police report under section 173, Cr.P.C. were summoned vide order, dated 30-7-1984 by the Sessions Judge, Khushab, to face trial for offences under section 16 of the Ordinance read with sections 148 and 149, P.P.C. The Additional Sessions Judge, Khushab, who eventually tried the two appellants and the six other accused, convicted the two appellants under section 10(2) of the Ordinance and sentenced them to R.I. for ten years and to whipping numbering ten stripes each, while he acquitted the other six accused. The appellants have filed the instant appeal against their conviction and sentences.

2. The prosecution case against the appellants is as under:----

Ahmad Khan son of Sultan Pathan is a cultivator and resident of village Golewali. His Dera is situated in his agricultural land where he resides with his family. Muhammad Khan his brother had died and his children also used to reside with their uncle Ahmed Khan at his Dera. Ghulam Rasul and Feroze sons of Muhammad Khan (deceased) had gone to Karachi to earn their livelihood by doing labour there. Their sister and mother, however, used to reside with Ahmed Khan. On 10-10-1983 at about 11 a.m. Ahmed Khan lodged F.I.R. at Police Station Gunjial that at about 11 p.m. the previous night Mst. Sahib Khatoon widow of Dost Muhammad came to their Dera and asked Mst. Bhagbhari daughter of his brother Muhammad Khan to accompany her, as her sister Met. Sardar Khatoon was not feeling well. Mst. Bhagbhari had then accompanied Met. Sahib Khatoon and both of them had left for the Dera of Dost Muhammad. After they had covered about a furlong Ahmad Khan heard noise from the side towards which they were going and saw Saifullah, Habibullah, Yaqoob (since murdered) sons of Dost Muhammad, Hakim Khan son of Allah Ditta, Alt Khan son of Said Amir, Muhammad Zaman son of Ahmed Khan and Bahadur Khan son of Amir all armed with guns. Ahmed Khan saw accused Satfullah and Habibuliah catch hold of Met. Bhagbhart, whom they were dragging away. Allah Diwaya and Muhammad Hayat witnesses also reached the spot and had seen the occurrence. It was the case of Ahmed Khan that witness Hayat was also carrying a lantern. They all tried to rescue Met. Bhagbhari from the accused, who, however, threatened that they would shoot them if they interfered. The accused then took away Met. Bhagbhari to commit Zina with her. All efforts to take Met. Bhagbhari back from the accused had failed, therefore, he had reported the matter to the police. Complainant Ahmed Khan further gave the motive for the abduction to be that Met. Bakki daughter of Said Amir had been abducted by Baz Gul his 'Khalazad' and the accused were close relatives of Said Amir and, therefore, had grudge to revenge which they had taken away Met. Bhagbhari.

3. Such report of Ahmed Khan was recorded by S.I. Gul Jan, S.H.O., Police Station Gunjial on the second day of the occurrence after which it was registered as F.I.R. Ahmed Khan and Muhammad Hayat witness had then gone to Karachi in search of Mot, Bhagbhari and the accused. They suspected that appellants were staying in the hotel of one Ghaus Muhammad in Mahmoodabad Mohallah of Karachi and on reaching the hotel they saw the two appellants committing Zina through a window of room of the said hotel. After seeing them committing the offence they went to Peroz brother of Met. Bhagbhari, who was asked to tell the police of Karachi to arrest the accused but the police refused to do so saying that they should approach the police where the abductee had been abducted. It was further the case of Ahmed Khan that he and Muhammad Hayat returned home and informed the local police about the presence of the accused-appellants at Karachi. Meanwhile Haji Gul Jan, who was S.H.O., Police Station Gunjial and who had recorded the statement of complainant Ahmed Khan. which was registered as F . I . R . , reached the place of occurrence and prepared site place. He recorded the statement of Allah Diwava on 20-10-1983. He handed over charge of investigation to M . H . C . of the police station as he was transferred. On 26-10-1983 A.S.I. Salimullah took over the investigation of the case and after visiting the place of occurrence recorded the statement of P.W. Muhammad Hayat under section 161, Cr.P.C. On 2i-10-1983 o n the direction of A . S . P A . S . I . Muhammad Jamil went to Karachi where both the appellants had already been arrested by police of Napiar Police Station. On 30-10-1983 he got remand of the appellants and their transfer from the Court of A.D.C. South Karachi. On 13-11-1983 A. S. I. Saleemullah got Saifullah medically examined from M. O. Civil Hospital Quaidabad with regard to his potency. Earlier on 6-11-1983 he made an application to the Court to record the statement of Mst. Bhagbhari under section 164, Cr.P.C. and had the same recorded. On 20-11-1984 he produced appellant Mst. Bhagbhari before Dr. Shamim Barlas, W.M.O., Khushab, for her medical examination and thereafter the investigation was entrusted to S.I. Malik Ghulam Qasim, S.H.O., Police Station Gunjial, who, however, was given up by the D.D.A. for the State as being unnecessary.

4. At the trial 8 prosecution witnesses were examined, namely; complainant Ahmed Khan P.W.4, HC Muhammad Azam, who had registered the F.I..R. in the case P.W.1, Dr. Pirzada Syed Muhammad Aslam Shah, who had on examination found appellant Saifullah to be potent P.W.2, Dr. Shamim Barlas, who had medically examined appellant Mst. Bhagbhari P.W.3, Muhammad Hayat, who had accompanied complainant Ahmad Khan to Karachi P.W.5, A.S.I. Salimullah P.W.6, S.I. Haji Gul Jan P.W.7 and A.S.I. Muhammad Jamil P.W.8 each of whom investigated the case.

5. The accused appellants in their statements before the Court denied all the allegations with regard to abduction or their committing Zina. It was their case that they were legally-wedded spouses and had been implicated in this false case due to enmity. Appellant Mat. Bhagbhari mentioned her age to be 21 years and appellant Saifullah stated that his age was 25 years. The other six co-accused, already referred to, in their statements also denied the allegation with regard to the alleged abduction of Mst. Bhagbhari and stated that they had been roped in due to their relationship with appellant Saifullah. P. Ws. Noor Khan, Muhammad Hayat son of Ayub Khan and Allah Diwaya were given up by the prosecution as having turned hostile and as already stated even the Investigating Officer Malik Ghulam Qasim S.I. of the Police Station Gunjial was given up as unnecessary. However, the same witness Noor Khan son of Haji Gul Khan Pathan appeared as defence witness 2 and stated that he had produced Nikahnama Exh.D.D. before the police which was taken into possession vide memo. Exh.D.E. He in his cross-examination stated that he was Councillor of the Union Council, Golewali. According to the Nikahnama Exh.D.D. the Nikah of Mst. Bhagbhari was solemnized with appellant Saifullah at Karachi on 23rd October, 1983.

6. We have heard the arguments of the learned counsel for the parties and have gone through the record of proceedings of the trial. Looking to the ages of the two appellants there is no reason why they could not contract marriage at Karachi specially as two brothers of Mst. Bhagbhari were residing and working at Karachi. The medical examination of Mst. Bhagbhari by Dr. Shamim Barlas also confirms that Mst. Bhagbhari was aged about 20 years. As there was some confusion about the pregnancy of Mst. Bhagbhari a medical board was constituted by the trial Judge of which Dr. Khalid Hussain Khan was one of the members. The aforesaid board medically examined Mst. Bhagbhari on 21-1-1984 for determination of pregnancy and they were of the unanimous opinion that she was pregnant and the pregnancy was 14 weeks on 21-1-1984. Since the Nikah as stated by the two appellants had taken place on 23rd October, 1983, the period during which the spouses had been together comes to about 91 days which would mean that there is the difference of about 7 days in the duration of pregnancy and Dr. Khalid Hussain Khan admitted that it is correct that while computing the period of pregnancy the difference of one week can be possible. It is, therefore, apparent that since the alleged witnesses of abduction namely Allah Diwaya and Muhammad Hayat were given up by the prosecution and there is no evidence on record to support the only word of the complainant and further that even as the evidence o expert makes it possible that the pregnancy could be due to valid an legal marriage solemnized as shown in the Nikahnama Exh.D.D., there is no reliable evidence on record to prove the commission of Zina. W also find that the evidence of complainant Ahmad Khan with regard t abduction by the other six co-accused was disbelieved even by the learned Additional Sessions Judge, Khushab, who had acquitted them of the offence under section 16 of the Ordinance on the ground that there is nothing to hold them guilty, in any sense, whatsoever. We, therefore, find that the evidence against the two appellants is most inadequate and not free from doubt. We, therefore, allow the appeal, set aside the conviction and sentences of the two appellants and acquit them of the charge. The appellants are stated to be in prison and an urgent order be issued to the Prison authorities to release them forthwith if they are not wanted in any other case.

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