2002 PLP 625 (MLD)

Nazar Abbas Syed for Petitioners. Abdullah for the State. Through this application the petitioner has sought after‑arrest bail in case F.I.R. No.100 of 2000 registered on 14‑2‑2000, at Police Station Saddar, Mang under sections 10/ 17/79, Offence of Zina (Enforcement of Hudood) Ordinance arid 420, 468, 471, P.P.C.

2. Brief facts of the case are that Mst. Sardaran Bib i is the complainant who alleged that Mst. Fauzia Parveen her duagther aged about thirteen years, was married with Mazhar Abbas a year ago. It was not consummated. It is alleged in the F.I. R. that the accused mentioned in the F.I.R. armed with fire‑arm weapon had abducted Mst. Fauzia Parveen. The statement made by the complainant and another witness are that two accused succeeded in taking away Mst. Fauzia Parveen on pistol point. The case of the accused is that Khizar Hayat married with the consent of Mst. Fauzia Parveen and Nikahnama was duly registered. Mst. Fauzia Parveen after the registration of the case has also got recorded her statement under section 164, Cr.P.C. in which she admitted that she has not been abducted by anybody and she had contracted marriage with Khizar Hayat with her free‑will and consent. The local police has not completed the investigation when the second statement of the alleged abductee under section 164, Cr.P.C. has been made in which she has stated that the petitioners alongwith five persons have committed Zina‑bil‑Jabr. The police has found the petitioners and other accused as guilty and recommended for the challan. The learned counsel for the petitioners contends that in her earlier statement under section 164, Cr. P. C. in which she has not supported the prosecution case that she had not been abducted and she had contracted marriage with her free‑will and consent with Khizar Hayat; writ petition has also been filed stating therein that she had contracted marriage with her free‑will and consent, the second statement according to the learned counsel for the petitioners could not be recorded and the case against the petitioners falls within the purview of further enquiry which is covered under subsection (1) of section 497, Cr.P.C. It is further contended that the case is totally false and concocted story has been adopted by the complainant. The petitioners are in jail for the last mote than one year and they are entitled to bail even on the statutory ground,

3. On the other hand the learned counsel ;appearing on behalf of the State has opposed the bail application oat the statutory ground and that the allegation of commission of Zina‑bil‑Jabr has been levelled against the petitioners, therefore, they are not' entitled, for bail under subsection (1) of section 497, Cr.P.C. It is further contended that the statement made subsequently under section 164, Cr.P.C., is reliable and the earlier statement due to the influence of the accused cannot be relied in the circumstances of the case. It is further contended that the challan has been submitted in the Court and the petitioners alongwith other persons were found guilty of the offence. According to the learned counsel for the State the alleged abductee stated that eight accused have committed Zina‑bil‑Jabr with her and the case does not fall within proviso of subsection (1) of section 497, Cr.P.C.

4. I have heard the learned counsel for the parties and have perused the record with their assistance.

5. The alleged abductee in her own statement recorded during the investigation under section 164, Cr.P.C. had not supported the prosecution and has stated that she had contracted marriage with her free‑will and consent. The Nikahnama was also produced before the concerned Authorities. She has also filed a writ petition in this Court alleging that she has contracted marriage with her free‑will and consent. The subsequent statement has been recorded under section 164, Cr.P.C., levelling the allegation against the petitioners, and as to which statement is correct, that will be seen during the trial, with the statement of the alleged abductee will be subjected to cross‑examination and whether she succeeds to make out the case against the petitioners. The petitioners have succeeded for the time being, in making out their case for the bail after arrest. As the case is of further enquiry and is covered by subsection (2) of section 497, Cr.P.C. the petitioners are admitted to bail after arrest subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the trial Court. H.B.T./N‑148/L Bail granted.