2005 PLP 1417 (MLD)

Petitioner was refused post-arrest bail by the learned Additional Sessions Judge on 2-10-2004 in case registered against him vide F.I.R. No.228 dated 15-6-2004 under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered with Police Station Gujar Khan, District Rawalpindi. He has now filed instant petition for the same relief.

2. Gravanen of the charge as it appears from the F.I.R. registered on statement of Mst. Iffat Bibi is that she being of the age of 16 years and unmarried was sleeping in the house of his father along with her two younger sisters and father on 14-6-2004 when at about 12-00 at night, Amir son of Afsar and the petitioner entered into the courtyard and by making her awake threatened her not to raise alarm. She further reported that she was forced to go at the backside of the house where Amir committed Zina-bil-Jabr with her and the petitioner remained on guard by stretching pistol on her. During this activity, somebody in the house put on the light and the accused fled away. Petitioner was arrested on 15-6-2004 and remaining on physical remand has since been remitted to judicial lock-up.

3. It was contended that there was no allegation of Zina against the petitioner and at the same time there was no occasion for him to remain present during the course of alleged activity by his co-accused. It was also argued that the complainant is a girl of easy virtue as is evident from her medical report. It was further submitted that according to chemical report dated 28-6-2004 duly reflected in the medical certificate semens were not detected from the vaginal swabs sent for chemical analysis. According to the medical opinion no intercourse was committed within 17 days from the time of her examination. Learned counsel for the petitioner further submitted that in spite of lapse of about 7 months trial of the case has not commenced thus his further detention would not serve any purpose of the prosecution. In view of medical/chemical report case of the petitioner was said to be that of further inquiry.

4. Bail was half-heartedly opposed with the argument that the petitioner has been named in the F.I.R. with attribution of specific role. According to the learned counsel for the State petitioner besides committing abduction facilitated the commission of Zina by his co-accused and that pistol was recovered from the petitioner, which incriminates him with the alleged offence.

5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the police record. Tentatively narrations by the complainant in the F.I.R. are unnatural as her entire family was sleeping in the courtyard along her, wherefrom two persons abducted her only to a place adjacent to the house but none of them got up. From the report of the Women Medical Officer it is clear that the complainant is a girl of easy virtue who appears to have associated with the co-accused of the petitioner, out of her own and on getting up of her father, the story of abduction was knit. Report of the Chemical Examiner is also negative and at the same time there is no allegation against the petitioner of committing sexual intercourse. It is also quite unnatural that petitioner during intercourse by his co-accused remained present and kept on watching the activity. Be that as it may, all these facts make the case of the petitioner that of further inquiry. Petitioner was arrested on 15-6-2004, but since then trial of the case has not commenced. Bail is not to be withheld as of punishment in view of the law laid down by the Honourable Supreme Court in the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). Petitioner will face the sentence if ultimately convicted by the trial Court at the conclusion of the case. Recovery of pistol, which was neither in the name of the petitioner nor report regarding its usability was obtained by the prosecution, is not enough to connect the petitioner with the offence charged.

6. For the reasons noted above, petitioner has made out a case for his bail in the case registered against him pending its trial. This petition is accordingly allowed and the petitioner is admitted to bail subject to his furnishing surety bonds in the sum of Rs.100,000 with two sureties each in the like amount to the satisfaction of the trial Court. H.B.T./K-106/L Bail granted.