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Criminal Miscellaneous No. 2597-B of 1986, decided on 5th October, 1986.
---S. 497--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11--Bail, grant of--Accused allegedly abducting prosecutrix forcibly and committing rape on her--Prosecutrix supporting allegations in her statement under S. 164, Cr.P.C.--Medical opinion regarding time of tearing of hymen, not conclusive--Submissions of accused requiring deeper appreciation of evidence--Statutory period of delay, not expired yet--Offence falling under prohibitory clause of S.497, Cr.P.C.--Bail refused in circumstances.
Faiz Muhammad Sadiq for Petitioners.
Sh. Rhsan Ahmad for the State.
This is an application for bail by Khuda Dad, Shehzada and Muhammad Iqbal petitioners in case under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at P.S. Sarai Alamgir, vide F.I.R. No. 125, dated 10-6-1985.
2. The prosecution case is that the petitioners and others abducted Mst. Zahida Parveen on 10-6-1985, removed her from place to place and committed Zina-bil-Jabr with her. As far the petitioners, it has been alleged that they had not only participated in the abduction of Mst. Zahida Parveen but had also committed rape upon her.
3. Learned counsel for the petitioners submits that although Mst. Zahida Parveen was taken from place to place but she did not raise alarm; that she was recovered on 17-7-1985 and medically examined on 20-7-1985 but the medico-legal report shows that the hymen was torn recently and that on query the doctor explained that the hymen was torn within 5/6 days; that since in between her recovery and her medical examination she remained with the police, therefore, there is a reasonable possibility that the rape, if any, was committed on her by someone else; that the Investigating Officers of Police Stations Ghaziabad and Chichawatni had found the allegations of abduction and rape levelled by Mst. Zahida Parveen to be false; that Mst. Zahida was not recovered from the custody of the petitioners; that the petitioners are in jail for the last six months and no evidence has been recorded so far and that the petitioners have been falsely involved on account of enmity over local council elections. The learned counsel has relied on cases Ehsan Ahmad v. The State 1980 P Cr. L J 1037, Bashir Ahmad v. The State 1978 P Cr. L J 368, Jehan Meena v. The State P L D 1983 FSC 183. Conversely, the learned counsel for the State has opposed this application.
4. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the petitioners. I find that the allegations are that the petitioners forcibly lifted Mst. Zahida Parveen, put her in a wagon and took her from place to place and committed rape upon her. Mst. Zahida Parveen in her statement recorded under section 164, Cr.P.C. has supported the allegations of abduction as well as rape against the petitioners; that the medical opinion with regard to the time when the hymen was torn is not conclusive; that the submissions made by the learned counsel travel beyond the scope of tentative assessment and require deeper appreciation of evidence and circumstances which is not desirable at bail stage; that the statutory period of delay has not expired yet and that the alleged offence falls within the prohibitory clause of section 497 , C r. P . C .
5. For what has been said above, I am of the view that it is not a fit case for grant of bail to the petitioners at this stage. The application is, therefore, dismissed.
S. A. /760/L Bail refused.
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