1991 PCr (PLP)

S. 497

Penal Code (XLV of 1860), S.363

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11

Bail, grant of

School leaving certificate and copy of medico-legal report showed that alleged abductee was about 17 years of age at the time of her abduction/kidnapping, whereas according to copy of birth certificate she was about 12/13 years at the relevant time-- Alleged abductee in her statement before Magistrate and in her statement made before Investigating Officer in premises of High Court, clearly had denied allegation of her abduction by accused and clearly stated that she had married the accused with her consent

Abductee was placed in Darul Aman on her request, and from there she was taken by her parents to their house and when thereafter she was produced before police for statement, at that time she supported story of her abduction by accused and made divergent statements at different timer and her age was yet to be determined by a Court of competent jurisdiction-- Abductees had already been recovered and accused was in jail for about 7 months

Case for grant of bail to accused, therefore, had been made out in circumstances. Special Attorney of petitioner in person. A.H. Masud for the Complainant. Shahbaz Saeed Sajid for the State. This is an application for the grant of bail to Munawwar Hussain, petitioner, in a case under section 363, P.P.C. and 10/11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at P.S. Kot Samaba, vide F.I.R. No.131/90. The prosecution case is that the petitioner and his relatives including ladies kidnapped Nadim (son) and Mst. Shahnaz (daughter) respectively of Khushi Muhammad, complainant, on 27-6-1990. According to the prosecution Mst. Shahnaz was abducted in order to subject her to Zina Biljabar. It has been stated in this petition that Mst. Shahnaz was sui juris of 17 years and she married to the petitioner with her consent on 26-6-1990. Since she had married the petitioner against the consent of her parents so not only the petitioner but his parents, sister and brother were falsely involved in the case; that Mst. Shahnaz in her statement recorded under section 164, Cr.P.C. has denied the charge of her abduction by the petitioner and that during the hearing of the writ petition, under the orders of the High Court the S.H.O. had recorded the statement of Mst. Shahnaz in the Court premises in which she exhonerated the petitioner of the allegation of abduction. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant has opposed this application on the ground that according to the birth certificate of Mst. Shahnaz she was a minor girl of about 12/13 years of age and that in her statement which was recorded by the police after her recovery she has supported the allegation of her and of her brother's kidnapping and commission of Zina by the petitioner; and that when she made a statement before the police in High Court premises and before the Magistrate under section 164, Cr.P.C. she was under the influence of the accused party.

2. I have considered the matter carefully. I find that according to the school leaving certificate marked `A' and the copy of the medico-legal report marked B' Mst. Shahnaz was about 17 years in age at the time of her alleged abduction/kidnapping; however, according to the copy of the birth certificate she was about 12/13 years at the time of occurrence; that in her statement recorded by the Investigating Officer in the premises of the High Court, she had denied the allegation of her kidnapping/abduction by the petitioner. She had clearly stated in her statement that she had married with the petitioner with her consent; that in her statement recorded by the Magistrate under section 104, Cr.P.C. she has not supported the allegations of her abduction by the petitioner; that on her request she was placed in Darulaman and therefrom she was taken by her parents to their house and was then produced before the police for statement. This time she supported the story of her abduction/kidnapping by the petitioner and the other members of his family. This will show that she has been making divergent statements at different times and her age is yet to be determined by a Court of competent jurisdiction. Mst. Shahnaz and Nadim have already been recovered. The petitioner is in the jail for about 7 months.

3. Without making any expression of opinion on the merit of the case, I feel that a case for grant of bail has been made out, so he will be released on furnishing bail bonds in the sum- of Rs.20,000 with one surety in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Rahimyar Khan. H.B.T./M-3164/L Bail granted.