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Criminal Miscellaneous No. 566‑B of 1981, decided on 16th November, 1981.

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑Penal Code (XLV of 1860), S. 379‑‑Bail‑ Testimony of two persons named in first information report and allegations made by complainant making out against accused a case under S. 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑Accused also involved in a number of similar cases‑‑Bail refused.

‑‑‑S. 497 ‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑Penal Code (XLV of 1860), S. 379‑‑Bail‑ Allegations made against accused by complainant that they helped main accused in taking away complainant's wife from his house requiring further inquiry‑‑Offence under S. 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979 which they allegedly committed not covered by prohibitory provisions of S.497, Cr.P.C‑‑Bail granted.

Taj alias Tajo v. The State 1974 P Cr. L J 1265 ref.

Syed Muhammad Zawar Shah for Petitioners.

Ch. Nazir Ahmad for the State.

Muhammad Bashir Khan for the Complainant.

Date of hearing: 16th November, 1981.

The petitioners were admitted to interim pre‑arrest bail by the learned Additional Sessions Judge, Multan in case F.I. R. No. 49 of 1981 registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Lodhran on the statement of Muhammad Rafique son of Muhammad Musa resident of village Gogran on 24‑2‑1981. On 26‑4‑1981 their application for pre‑arrest bail was dismissed and the petitioners were taken into custody. They have filed the present petition for bail in this Court.

2. The allegations made against the petitioners are that on 18‑2‑1981, Allah Ditta petitioner accompanied by his mother Mst. Sarwar Mai and sister Zohra visited the house of the complainant and took away his wife Mst. Sughran with them. The complainant contacted Muhammad Ramzan and Muhammad Yar petitioners, who are the brothers of Allah Ditta petitioners, and asked them to send back his wife Mst. Sughran to his house. They informed the complainant that Allah Ditta petitioner had taken her to some Hakim for getting medicines for her and that she would be sent back to his house on her return. The afore‑mentioned petitioners however, did not keep their word with the result that the complainant reported the matter to the police. According to the complainant Mst. Sughran had also taken with her ornaments and clothes. During the investigation of the case, it was discovered that Allah Ditta petitioner had developed illicit relations with Mst. Sughran while she was residing in the house of her husband and that he had committed Zina with her after taking her from the house of the complainant. Charges under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 379, P.P.C. were also added against the petitioners.

3. Learned counsel for the petitioners has contended that the complainant has falsely implicated the petitioners in the case. Mst. Sughran was not living in the house of the complainant on the day when she was allegedly taken away by the petitioners because she had instituted a suit for dissolution of marriage against the complainant on 14‑2‑1981 and in the plaint she had specifically stated that the complainant had turned her out of her house about five months prior to the filing of her suit. On 9‑3‑1981 Mst. Sughran appeared before a Magistrate at Multan and made a statement that she had instituted a suit for dissolution of marriage against her husband Muhammad Rafique and that since she apprehended danger to her personal safety she should be sent to Darul Aman. After recording the above statement of Mst. Sughran, she was sent to Darul Aman, Multan, from where, later on, she was arrested by the police as an accused in the present case. Learned counsel for the petitioners has submitted that the petitioner had not committed any offence in view of the statement of Mst. Sughran which was recorded by the Magistrate on 9‑3‑1981. There is no evidence to substantiate the allegations made by the complainant that Allah Ditta petitioner had committed Zina with Mst. Sughran. Even the charge of theft brought out against the petitioners was not supported by any recovery. Muhammad Yar and Muhammad Ramzan petitioners had not visited her parents' house nor they had taken away Mst. Sughran from his house. Even the allegation of Zina has not been made against them.

4. Learned counsel for the State has opposed the petitioners prayer for bail. He has argued that the mere fact that a suit for dissolution of marriage against Muhammad Rafique complainant was filed before the Judge Family Court on 14‑2‑1981 does not prove that Mst. Sughran had personally presented the plaint in the Court. Allah Ditta petitioner, who had developed intimacy with Mst. Sughran, while she was residing in her husband's house, had got her thumb impressions affixed on the Vakalatnama and a plain paper before she was taken away from the house of the complainant. A suit for dissolution of marriage was got instituted through a counsel before Mst. Sughran was taken away from the house of her husband in order to show that Mst. Sughran had herself left the house of her husband long before the registration of the case. According to the learned counsel for the State Allah Ditta petitioner has a chequered history of kidnapping and abducting women. The learned counsel hag given particulars of some of the cases which are still pending against him in various criminal Courts. He was also proceeded against under the Control of Goondas Ordinance 1959. He is also involved in a number of theft cases registered at Police Station Lodhran and Police Station Sadar Bahawalpur. Learned counsel for the State has further contended that Muhammad Ramzan and Muhammad Yar petitioners have committed offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as they had concealed Mst. Sughran in their house after she was taken away from the house of her husband Muhammad Rafique. The statement of Mst. Sughran on which reliance has been placed by the petitioners is of no avail to them as she is also one of the accused in the case and had made the above statement to save her own skin.

5. I have considered the arguments of the parties counsel. Abdur Rehman son of Faiz Bakhsh and Ellahi Bakhsh son of Karim Bakhsh had seen Allah Ditta petitioner and his mother and sister taking away Mst. Sughran from the house of the complainant as stated by him in the F.I.R. It N difficult to believe that Mst. Sughran had left the house of the complainant about 4/5 months before the registration of the case as contended by her in her plaint in the suit for dissolution of marriage in view of the testimony of the aforementioned persons especially when there is nothing to indicate that the plaint in the suit for dissolution of marriage was presented by Mst. Sughran personally on 14‑2‑1981 when it was filed in the Court of Judge Family Court, Multan. The statement of Mst. Sughran recorded by the Magistrate on 9‑3‑1981 wherein she controverted the allegations made by her husband that she was not taken away from his house by Allah Ditta petitioner and others is also of no avail to Allah Ditta petitioner, as Mst. Sughran is also being proceeded against as an accused in the case. Learned counsel for the petitioners has relied on Taj alias Tajo v. The State 1974 P Cr. L J 1265 to show that the mere fact Allah Ditta accused was involved in a number of similar cases and that there was likelihood of repetition of such offences by him, should not deprive him from the concession of bail. In the aforementioned reported case the accused was admitted to bail on the merits of the case inasmuch as there was no corroborative evidence to support the prosecution story which was necessary. In that case in view of the strained relations between the parties. In the present case however, the testimony of the two persons named in the F.I.R. who had seen Allah Ditta petitioner, his mother and sister taking away Mst. Sughran from the house of her husband cannot be over‑looked. The absence of any direct evidence to prove the charge of Zina against Allah Ditta petitioner and Mst. Sughran is of no consequence because the allegations made by the complainant disclosed against him to make out a case under section 16 of the offence of Zina (Enforcement of Hudood) Ordinance. Viewed in the background of Allah Ditta petitioner's involvement in a number of similar cases, I do not consider it proper to allow him bail.

6. The case of Muhammad Ramzan and Muhammad Yar petitioners is, however, distinguishable from that of Allah Ditta petitioner. They had not accompanied Allah Ditta petitioner and others when they had visited the complainant's house and had taken away Mst. Sughran with them. There is no doubt that they had promised to send back Mst Sughran to the complainant's house when he had contacted them but whether they had detained her or concealed her in their house in matter which would be determined only at the trial. The allegation made against them by the complainant in the F.I.R. that they had helped Allah Ditta petitioner in taking away his wife from his house require further inquiry. Offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which they have allegedly committed in view of the aforementioned allegations is not covered by the prohibitory provisions of section 497, Cr.P.C. as the punishment provided for it is seven years rigorous imprisonment. Muhammad Ramzan and Muhammad Yar petitioners are accordingly admitted to bail on their furnishing security in the sum of Rs.10,000 each with one surety in the like amount each to the satisfaction of the Assistant Commissioner, Lodhran.

7. For the reasons noticed above, the prayer of Allah Ditta petitioner for bail is rejected.

M.Y.H./3196/L Order accordingly.

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