2002 PLP 1082 (YLR)

Muhammad Amjad Mumtaz for the State. Muhammad Nasir son of Falak Sher and Abdul Ghaffar son of Sikandar Ali, petitioners, have sought their post‑arrest bail in case F.I.R. No.354 of 1999 registered at Police Station Malka Hans, District Pakpattan Sharif, on 21‑10‑1999, for offence under sections 16/10 of the Offence of Zina (Enforcement of Huddood) Ordinance, 1979.

2. According to F.I.R. Mst. Ghulam Fatima sister of the complainant, was married with one Ahmad Ali on 19‑4‑1999. However, Mst. Ghulam Fatima came to the house of the complainant/her brother and started living with him. On 2‑8‑1999 at about 8‑00 p.m. Mst. Haleema Bibi sister of Muhammad Nasir/petitioner No. 1, along with Mst. Ghulam Fatima went outside of the house to ease herself and Mst. Ghulam Fatima was forcibly abducted by Muhammad Nasir and Abdul Ghaffar, petitioners alongwith other accused. It was further stated in the F.I.R. that on 15‑8‑1999 Ghulam Muhammad and Noor Muhammad P.W.s saw Muhammad Nasir/petitioner No.1 committing Zina‑Bil‑Jabr with Mst. Ghulam Fatima in a house through a hole in the door. It is added that on 28‑9‑1999 Mst. Ghulam Fatima sister of the complainant came back to the house and the matter was reported to the police.

3. Admittedly, petitioner No. 1 Muhammad Nasir for the last two years and Abdul Ghaffar petitioner No.2 for the last one year, are behind the bars and the trial of the case has been adjourned sine die.

4. The learned counsel for the petitioners has stated that no offence has been committed by the petitioners, as Mst. Ghulam Fatima, the alleged victim, in fact married with Muhammad Nasir/petitioner No.1. The learned counsel has also referred to annexure‑C of this petition, which shows that Mst. Ghulam Fatima filed a suit for jactitation of marriage against Muhammad Nasir alias Naseer petitioner No. 1 in the Court of Family Judge, Sahiwal. The afore-referred case was decided vide judgment dated 31‑10‑2001 and according to para‑5 of the said judgment Mst. Ghulam Fatima moved an application for withdrawal of the suit on the ground that her relatives had forced her to file the said suit. The application for withdrawal of the suit filed by Mst. Ghulam Fatima was allowed by the learned Judge Family Court and the suit was dismissed accordingly.

5. Conversely, the learned counsel for the complainant has vehemently argued that the case is under trial and that during her statement before the trial Court Mst. Ghulam Fatima has supported the prosecution case.

6. The learned counsel appearing on behalf of the State has followed the line of arguments of the learned counsel for the complainant.

7. I have heard the learned counsel for the parties and have gone through the record. It has been noticed that the matter was reported to the police after a delay of more than two months, when Mst. Ghulam Fatima allegedly returned to the house of the complainant. Surprisingly two P.Ws including Ghulam Muhammad, brother of Mst. Ghulam Fatima, allegedly saw committing Zina by Muhammad Nasir/petitioner No. 1 on 15‑8‑1999 with his own eyes but he did not report the matter to the police. Mst. Ghulam Fatima had been making divergent statements before different Courts. She is, present before this Court today and has categorically stated that she was wife of Muhammad Nasir/petitioner No. 1, who was father of their female child namely', Nourin. Muhammad Nasir/petitioner No. 1 is rotting in Jail for the last two years while Abdul Ghaffar/petitioner No.2, against whom no allegation of commission of Zina has been levelled is behind the bars for the last one year.

8. In these circumstances, I am inclined to allow this petition and admit the petitioners to bail, subject to their tendering bail bonds in the sum of Rs. Five thousand, each, with one surety each in the like amount to the satisfaction of the trial Court. H.B.T./M‑1332/1 Bail granted.