2002 PLP 852 (YLR)

Khalid Mehmood Farooqi for the State. Muhammad Iqbal Cheema for the Complainant. Through this petition Allah Ditta petitioner has sought post‑arrest bail in case F.I.R. No.399 registered at Police Station Nawan Kot, Lahore on 14‑7‑2001 for offences under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 380, P.P.C.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. in this case had been lodged with a delay of seventeen days. A bare perusal of the F.I.R., depicting the past and present conduct of the alleged abductee namely Mst. Asia, prima facie negates the element of forcible abduction as alleged by the prosecution. Even the learned Additional Sessions Judge, Lahore had observed in his order dated 28‑9‑2001 that apparently it was a case of elopment and not of forcible abduction. Thus, applicability of the provisions of section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to the facts alleged in this case appears to be doubtful.

3. Section 380, P.P.C. has already been deleted from the F.I.R. and that part of the allegations levelled in the F.I.R. also stand negated by the Investigating Agency.

4. As regards the offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 suffice it to observe that the prosecution is possessed of no independent evidence regarding commission of Zina or Zina‑bil‑Jabr by the present petitioner with the alleged abductee namely Mst. Asia except the solitary statement of Mst. Asia herself made before the police on 20‑7‑2001. The statement made by Mst. Asia under section 161, Cr.P.C. on 20‑7‑2001 shows that she had been living with the petitioner and the other co‑accused for a period of about three weeks and during this period she had been travelling with them from place to place by public transport without raising any protest whatsoever. Mst. Asia was never medically examined so as to lend support to the allegation regarding commission of Zina or Zina‑bil‑Jabr with her. The petitioner has taken a defence of valid Nikah with the alleged abductee namely Mst. Asia and the petitioner is relying upon a registered Nikah Nama dated 29‑6‑2001 in that regard. The parties to this case are closely related to each other and Mst. Asia's paternal uncle namely Muhammad Ismail is shown to be a witness of the above mentioned claimed Nikah of the petitioner with Mst. Asia.

5. In these circumstances even the allegation regarding Zina or Zina‑bil‑Jabr levelled against the petitioner calls for further probe. The investigation of this case has already been completed viz‑a‑viz the present petitioner and a challan has already been prepared. In these circumstances continued physical custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage. It is trite that bail ought not to be withheld by way of premature punishment.

6. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.

7. Before parting with this order it may, however, be clarified that anything observed or done in the present proceedings or the present order shall not prejudice the learned trial Court in any manner. N.H.Q./A‑444/L Bail allowed.