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Criminal Miscellaneous No. 433/B of 1986, decided on 4th March, 1986.

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11‑‑Bail, grant of‑‑No evidence of commission of Zina‑‑Prima facie a case of elopement‑‑Vaginal swabs not stained with semen‑ Co‑accused allegedly made confession before Investigating Officer‑‑Such statement before Police, being inadmissible in evidence case for enlargement of accused on bail was made out.

Ghulam Nabi Bhatti for Petitioner.

Abdul Latif Chaudhary for the State.

Date of hearing: 4th March. 1986.

Muhammad Amin alias Mahna petitioner has moved this petition for bail in a case registered against him and two others under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The prosecution version is that Amin alias Mahna petitioner developed illicit relations with co‑accused Mas. Mumtaz Bibi, wife of Sabir. On 16‑8‑1985 cap‑accused Shahrah took her away from the house of her father Rehmat complainant situated in Village Pial Kalan. The complainant was informed by Khalil and Ghulam that they had seen Mat. Mumtaz Bibi going towards Dhang Shah in the company of the petitioner and aforementioned Shahrah. On 2‑9‑1985 all the three were arrested by the police at Adds Dhang Shah.

3. Learned counsel for the petitioner contends that there is no evidence against the petitioner either of abduction or of Zina and his top co‑accused have already bean released on bail therefore he is also entitled to the some concession.

Learned counsel for the State has opposed the prayer for bail. He has, however conceded that there is no evidence regarding the commission al Zina.

4. I have gone through the relevant material. Perusal of the file prima fade shows that it was a case of elopement. In his order dated 21‑1t‑1985, the Additional Sessions Judge has observed that there is evidence of extra‑judicial confession against the accused of having committed Zina but this does not appear to be the correct position. In the order he has not mentioned the name of the accused who‑made the confession nor the names of the witnesses before whom the confession was allegedly made. Jalal Din and Muhammad Din P.Ws. joined the investigation of this case on 2‑9‑1985 and made statements before Roshan Din A.S.I. that Mat. Mumtaz Bibi had confessed before him (the A.S A.) in their presence that the petitioner had been committing Zina with her to which she was a consenting party. Such statement before the police is inadmissible in evidence. It need also mentioned that according to the report of the Chemical Examiner the vaginal swabs were not stained with semen. In the circumstances, a case for the enlargement, of the petitioner is made out. I therefore admit him to bail in the sum of Rs.10,000 (Rs. ten thousand only) with two sureties in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Kasur.

S.A. Bail allowed.

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