2008 PLP 1732 (MLD)

KHURSHID ANWAR BHINDER, J.

The petitioner seeks post-arrest bail in case F.I.R. No.553 of 2007, dated 20-12-2007 registered under section 365-B, P.P.C. at Police Station Qadirabad District M.B. Din.

2. Precise allegations against the petitioner are that he had abducted Mst. Azra Bibi, daughter of the complainant and had committed Zina-bil-Jabr with her.

3. Learned counsel for the petitioner submits that a false case has been registered against the petitioner as he had not abducted Mst. Azra Bibi. He has referred to her statement which was recorded under section 164, Cr.P.C. by the Magistrate on 17-1-2008, wherein she had clearly stated that she had contracted marriage with the petitioner with her free will and consent and he had not abducted her. He further states that in view of the statement of the abductee, the petitioner is entitled to be released on bail.

4. Learned counsel of the complainant opposes bail application of the petitioner and submits that the trial of the case has been commenced and the case is at evidence stage, therefore, directions may be given to the trial Court to conclude the matter expeditiously. In this regard he has relied upon the cases reported as Muhammad Jahangir Badar v. The State (PLD 2003 SC 525), Muhammad Nawaz v. The State (2002 SCMR 1381), Muhammad Hanif v. Shafqat Nazir and others (2007 SCMR 1857), Khalid Iqbal v. The State (2005 YLR 856) and Muhammad Arshad v. The State (2004 PCr.LJ 1876).

5. Learned DPG also opposes bail application of the petitioner and adopts the arguments, advanced by the learned counsel for the complainant.

6. I have heard the learned counsel for the petitioner, learned counsel for the complainant as well as learned DPG and have also perused the record. No doubt the petitioner is nominated in the F.I.R. with specific role of abduction, but I am afraid as per facts and circumstances of the case, there are contradictory statements on behalf of the abductee Mst. Azra Bibi, firstly, she had stated before the Magistrate on 17-1-2008 in her statement recorded under section 164, Cr.P.C. that she had contracted marriage with the petitioner with her free will and consent and he had not abducted her, but subsequently, another statement was recorded by her before the Magistrate on 28-1-2008, in which she had implicated the petitioner with the commission of said offence. In view of her contradictory statements, this Court had summoned Mst. Azra Bibi to know the factual position regarding her stance. She had endorsed her later statement which she made before the Magistrate on 28-1-2008, wherein she had fully implicated the petitioner with the commission of said offence. In order to find out the factual position, this Court had again confronted Mst. Azra Bibi with a question as to whether the petitioner had committed Zina-bil-Jabr with her at her place of residence prior to her abduction, her reply was in affirmative. This Court has to make tentative assessment as per facts and circumstances of the case, particularly with reference to the statement of the abductee. Since she has stated that the present petitioner had committed Zina-bil-Jabr with her at her place of residence, which apparently seems unbelievable and irrational for the reason that it is practically not possible in our society for any woman to conceal commission of Zina -bil-Jabr with her especially when it is committed against her consent and that too at her place of residence. As stated by the abductee that prior to this occurrence, the petitioner has been subjecting her to Zina-bil-Jabr but she did not report the matter to her parents or any of her relatives due to fear, I am afraid, when the abductee was not a consenting party and she had retaliated the conduct of the petitioner, there was no reason for her not to bring into notice to her parents regarding the commission of Zina-bil-Jabr. Under the circumstances, statement of the abductee seems to be unbelievable to that extent. As far as her statement recorded under section 164, Cr.P.C. before the Magistrate is concerned, I am afraid there are two contradictory, statements before him, therefore, no reliance can be placed on the credibility of the abductee, as both the statements of the abductee are contradictory and doubtful.

7. As per opinion of the Doctor in his medical examination report two fingers are easily insertible in the vagina of the abductee. Since the abductee had stated before this Court that the petitioner had been alone committing Zina-bil-Jabr with her for about seven days and rest of the co-accused did not commit Zina-bil-Jabr with her, therefore, merely commission of Zina with the abductee for seven days and too by one man does not make the vagina flexible to an extent that two fingers are easily insertible. It can, hence, very easily be deduced that the abductee was used to sexual intercourse prior to that occurrence. That being so, statement of the abductee is not trustworthy or confidence-inspiring.

8. As far as arguments of the learned counsel for the complainant regarding commencement of the trial of the case is concerned, I am afraid when prima facie it appears to the Court as per merits of the case that the petitioner is not involved with the commission of an offence his right of liberty cannot be jeopardized. It has been held by the Superior Courts that even at the trial stage bail of the accused person cannot be withheld when prima facie no case is made out against the accused person. Reliance can be placed on Tariq Naeem v. The State and others (2007 PCr.LJ 1015), Zahoor Ahmad and another v. The State (2005 YLR 1664) and Wali Muhammad v. State (PLJ 1995 Cr.C. (Lahore) 53).

9. Under the circumstances, I am convinced that petitioner's case is that of further inquiry into his guilt. I, therefore, admit the petitioner to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount each to the satisfaction of the learned trial Court/Illaqa Magistrate. Petitioner stands disposed of. N.H.Q./M-319/L Bail allowed.