1996 P Cr (PLP)

Ch. Ghulam Qadir for Respondent No.1. The petitioner, who is complainant in case F.I.R. No.358 registered at Police Station (Saddar), Gojra on 22-12-1993 under section 302, P.P.C. and under section 10/18 of Ordinance VII of 1979, seeks cancellation of bail granted to Ahsan Guftar accused-respondent by the learned Additional Sessions Judge, Toba Tek Singh, vide order, dated 3-4-1994.

2. The facts alleged in the report lodged by the petitioner with Gojra Police are that Ahsan Guftar respondent had established illicit liaison with his (petitioner) daughter Mst. Razia Bibi and during the night between 21/22-12-1993 when he alongwith his son Manawar Hussain and others was searching for her, as she had gone out of the house stealthily, and on an information received from Muhammad Ashiq and others, went to the Haveli of Ahsan Guftar respondent, they found her lying with him on a cot in a room of his house in compromising position. According to him, Ahsan Guftar respondent having been surprised by him and his companions, ran out of the room and escaped successfully but his daughter Mst. Razia Bibi fell into their hands and his son Munawar Hussain having lost self-control out of Ghairat, killed her on the spot by inflicting hatchet blows and later her dead body was removed to his house.

3. There is no indication in the police proceedings recorded at the end of the F.I.R. as against whom the case was registered under section 302, P.P.C. and who was apparently liable for an offence under section 10/11 of Ordinance VII of 1979. However, in the final case diary, dated 31-12-1993, the Investigator held Manawar Hussain liable for the. murder of the girl and Ahsan Guftar respondent for attempting to commit Zina with Mst. Razia Bibi and sent them up for trial through the Illaqa Magistrate.

4. Ahsan Guftar accused-respondent later applied to the learned Additional Sessions Judge, Toba Tek Singh, for bail and the learned Judge granted to him bail by the impugned order after coming to the conclusion that the allegations made against him fell within the purview of section 354, P.P.C. which was bailable and not under section 10/11 of Ordinance VII of 1979.

5. It is argued on behalf of the petitioner that Mst. Razia Bibi was killed by her brother on account of her abduction by Ahsan Guftar accused-respondent, who, after taking her to his own house, actually committed Zina with her as it appears from the post-mortem report and the result of chemical analysis of her vaginal swabs, which indicates the same having been stained with semen, and in these circumstance Ahsan Guftar accused-respondent was in fact liable for abduction and Zina punishable under sections 11 and 10 of the said Ordinance and he was erroneously bailed out by the learned Additional Sessions Judge.

6. Learned counsel representing the State supports the view of the learned counsel for the petitioner. He adds that it was Ahsan Guftar respondent who was responsible for the murder of the girl, whom he had abducted and later subjected to Zina. He informs that section 10 of Ordinance VII of 1979 has been added after the receipt of result of chemical analysis of the vaginal swabs of the deceased lady.

7. The application has, however, been opposed by the learned counsel for Ahsan Guftar accused-respondent. He submits that the occurrence took place during the night of December which was an extremely cold weather and there was an apparent concoction or misstatement of facts in the F.I.R. because there could be no possibility of the lantern lighting up at that odd hours of the night in a room of the respondent's house and the door of the room lying open especially when he was allegedly lying with her on the same cot in a compromising position. He contends that in the F.I.R. there is no allegation against the accused-respondent that he had abducted Mst. Razia Bibi (deceased) and had brought her to his house as an abductee. According to the learned counsel, the occurrence in fact did not take place in the house of the respondent, rather, the incident occurred in the house of Muhammad Ashiq son of Ahmad Din who became informer for the complainant and his son and has been mentioned as such in the F.I.R. In this connection he refers to the site plan prepared by the police.

8. The perusal of the site plan indicates that Mst. Razia Bibi was killed outside the Haveli of Ahsan Guftar accused-respondent when she was running out of it in order to save her life. There is, therefore, no substance in the contention of the accused-respondent's counsel that she was killed in the house of Muhammad Ashiq informer.

9. As per report of chemical analysis, the presence of semen on the vaginal swabs of the deceased lady, which were taken out by the doctor at the time of conducting post-mortem examination, indicates that she was subjected to Zina and apparently there could be no other person excepting the accused-respondent A from whose cattle-shed she was running out at odd hours of the night. The prosecution case is that it was he who was carrying on with her and had either enticed her away or she herself had gone to his place in order to meet him. One wonders as to how the learned Additional Sessions Judge ignored the important fact of the semen-stained vaginal swabs of the deceased lady and came to the conclusion that it was a case falling within the ambit of section 354, P.P.C. so a far as the accused-respondent was concerned. Prima facie a case against him under section 10 of Ordinance VII of 1979 had been made out and he was not entitled to the grant of bail especially when it was he whose conduct entailed the murder of the girl.

10. In view of the above, the order, dated 3-4-1994, granting bail to Ahsan Guftar accused-respondent is recalled. He should be taken into custody and sent to the judicial lock-up. H.B.T./G-262/L Bail cancelled.