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Criminal Miscellaneous No. 640/B of 1986, decided on 9th August, 1986.
‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 363‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(3), 11 & 16‑ ‑Bail, grant of‑‑Abductee allegedly recovered from accused‑‑No allegation of Zina against him‑‑Accused behind bars for about four months and no evidence recorded so far‑‑Offence against accused, would at the most fall under S. 16 of Ordinance and would not fall within prohibitory clause of S. 497, Cr.P.C.‑‑Bail granted in circumstances.
Ch. Muhammad Ishaq Khan for Petitioner.
Mirza Agha Khuram for the State.
Petitioner who is an accused in a case under section 363, P.P.C. read with sections 10(3) and 11 of Offence of Zina (Enforcement of Hudood), Ordinance VII of 1979 has moved this petition for post‑arrest bail.
2. Initially a case under section 363, P.P.C. was registered at Police Station 'B' Division, Sahiwal vide F.I.R. No. 118, dated 25‑2‑1986 on the statement of Sharbat Ali who alleged that his maternal grand daughter Mst. Rukhsana a minor was kidnapped by somebody for illicit purpose on the night between the 24th and 25th of February, 1986. During the investigation, it transpired that Mst. Rukhsana was kidnapped by Ashraf, a younger brother of the present petitioner. Case against the petitioner is that Mst. Rukhsana was recovered from him when he was taking her from Lahore to Multan with a view to hand her over to Iqbal co‑accused. Petitioner was accordingly arrested on 7‑4‑ 1986. After his arrest, petitioner moved a bail petition in the Sessions Court which was dismissed by the learned Additional Sessions Judge II, Sahiwal vide order, dated 13‑ 5‑ 1986. He repeated the bail petition on a fresh ground viz. the challan has not been submitted in the Court so far but this petition, too was dismissed by the same Additional Sessions Judge on 16‑6‑1986.
3. I have heard the learned counsel for the petitioner as also the learned counsel for the State and have also perused the relevant record.
4. Learned counsel for the petitioner has read out the statement of Mst. Rukhsana recorded under section 161, Cr.P.C. and submits that she has not made any allegation of Zina against the petitioner. He contends that even if it be accepted that Mst. Rukhsana was recovered from the petitioner, he would at the most be guilty of an offence under section 16 of Ordinance VII of 1979 which is punishable with imprisonment of either description for a term extending to 7 years. Argument of the learned counsel, therefore, is that the case against the petitioner does not fall within the prohibitory clause and in such cases, grant of bail is a rule and refusal an exception. It is further submitted by the learned counsel that the petitioner has been behind the bars for four months and although the challan has since been submitted in Court but not a single prosecution witness has so far been examined.
5. Learned counsel appearing for the State is unable to controvert the submissions made by the learned counsel for the petitioner and he quite frankly concedes that the case against the petitioner at the most falls under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
6. In view of what has been stated above, it is a fit case for grant of bail. It is, therefore, ordered that the petitioner be released on bail in the sum of Rs. 25,000 with two sureties each, in the like amount to the satisfaction of A.C./Duty Magistrate, Sahiwal.
S.A. /M‑133/L Bail granted.
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