1997 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

S. 497(2)

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12

Penal Code (XLV of 1860), S.377

Affidavits submitted by prosecution witnesses exonerating the accused

Case one of further inquiry-- When prosecution witnesses submit their affidavits exonerating the accused, case against him becomes that of further inquiry. Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCMR 137 ref. Malik Muhammad Shabbir Langarial for Petitioners. Zafar Mahmood Anjum for the State. Ilyas Raza complainant aged about 14 years got recorded F.I.R. No.48, dated 4-4-1995 at Police Station Saddar Alipur under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. with the allegation that on 3-4-1995 he had gone from Multan to the house of his maternal-uncle in Tibbi Arain. On 4-4-1995 he was returning back to his home at 12-00 at noon. In a garden he was surprised by Ashiq Hussain and Ghulam Shabbir petitioners-accused who removed him to another garden. Ashiq Hussain was armed with a pistol. They threatened him. His Shalwar was removed. Both Ashiq Hussain and Ghulam Shabbir committed carnal intercourse against the order of nature. Ghulam Muhammad and Muhammad Yar P.Ws. are said to have been attracted at the spot on his alarm. The accused persons made good their escape. The case was investigated. The bail plea of the petitioners has been rejected by the lower Court. Hence this petition with the same desire.

2. I have heard the learned counsel for the petitioners as well as learned State Counsel and gone through the record before me. Ghulam Muhammad P.W. is present before me along with his affidavit to the effect that he had not seen the occurrence and was not present at the spot. In order, dated 9-10-1995 as well it is mentioned that both the witnesses namely Ghulam Muhammad anti Muhammad Yar had sworn in and submitted their affidavits to the effect that they had not seen the occurrence. However, no reliance was placed on the same on the ground that the swearing of the affidavits was the result of compromise with the child who was a minor. The view expressed by the lower Court is not in accordance with law. According to the dictum enunciated in Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCMR 137 when the P.Ws. submitted their affidavits exonerating the accused person the case becomes that of further inquiry and under Article 189 of the Constitution of Pakistan the subordinate Courts have to follow the dictum enunciated and the law expounded by the Supreme Court of Pakistan. Further` according to me the complainant was surprised while passing the garden who was removed to some distance and such a removal may have to be analysed about the attraction of the offence of abduction for the purpose of sodomy as narrated under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In the circumstances, the case of the prosecution against both these petitioners has become that of further inquiry and they are held entitled to be admitted to ball.

3. I, therefore, accept this application and admit both Ashiq Hussain and Ghulam Shabbir petitioners-accused to ball in the sum of Rs.25,000 (Rupees twenty-five thousand) each with one surety each in the like amount to the satisfaction of the Additional Sessions Judge, Alipur/Sessions Judge, Muzaffargarh with the direction to appear before him when and where so required failing which their bail may be cancelled by the trial Court.

4. Copy Dasti subject to payment of usual charges, if desired. N.H.Q./A-109/L Bail allowed.