2004 P Cr (PLP)

Anwar A. Ansari for the State. Date of hearing: 15th July, 2003. Applicant Muhammad Aslam and another are being tried by the IInd Additional Sessions Judge, Badin for an offence punishable under sections 11/16 of the Zina (E.O.H.):Ordinance, 1979.

2. As per F.I.R. lodged by Kamran Haider, brother of abductee Saima Nazish, the abductee was student of Marvi Girls College, Badin and on 30‑11‑2002 she went to college but did not turn up. From the Chowkidar of the college the complainant learnt that at 8‑45 hours Saima was forcibly abducted by Aslant in a white car. Later on the driver of the car namely Jumman appeared at the house of complainant and informed him that his car was hired by Muhammad Aslam who from Marvi College brought a girl dragging her from her arm and took her in the car to Hyderabad. At the Railway Station, Hyderabad they met Rana Imtiaz alias Amjad Rajput who both took away` the girl and he returned back.

3. The F.I.R. was lodged on 1‑12‑2002 and the applicant was arrested on 8‑12‑2002. The abductee was recovered from the house of her father on 19‑12‑2002 and on same day her statement was recorded under section 164, Cr.P.C. She alleged forcible abduction. She implicated applicant Aslam and co‑accused Rana Imtiaz to have committed Zina with her and kept her in wrongful confinement.

4. I have heard Mr. Noor Ahmed Memon, learned counsel for the applicant and Mr. Anwar A. Ansari learned State Counsel.

5. Learned counsel urged the bail plea on the grounds that the recovery of the abductee was not made from the applicant, story of forcible abduction from the college is not believable, no marks of violence were detected on the person of the abductee, two witnesses namely Chowkidar and the driver filed affidavits exonerating the applicant and the statement under section 164, Cr.P.C. was recorded in absence of the accused. He relied on Muhammad Ismail v. The State 1994 PCr.LJ 910, Khan Muhammad v. The State 1994 PCr.LJ 2542. Muhammad Nawaz alias Najja v. The State 1991 SCMR l I1 and Atiq‑ur- Rehman v. The State 1995 MLD 1073 in support of his contentions.

6. Learned State Counsel, Mr. Ansari vehemently opposed the bail plea on the ground that allegations of Zina and wrongful confinement as also abduction have been confirmed by the abductee herself which part of evidence cannot be ignored at this stage.

7. I have carefully considered all these contentions, in the light of the facts and circumstances of the case and the case‑law cited by the learned counsel for the applicant. The affidavits of P.Ws. will not at this stage damage the case of prosecution as evidence of abductee is still on record. The authorities cited on this point will therefore, not apply. As regards statement under section 164, Cr.P.C. it is of course hit by section 265‑J, Cr.P.C. but after all it is a version given by the abductee implicating the applicant with the alleged offence of forcible abduction. Zina and wrongful confinement. The absence of marks of violence is also not of material significance when the abductee has allegedly been confined for a number of days al the point of fire‑arm. In this view of the matter the bail plea is premature, these grounds may be urged. again after some evidence comes on record. Accordingly, while dismissing the application for bail direction is issued to the trial Court to examine the abductee within a period of two months of receipt of this order. After expiry of such period the applicant would be at liberty to file fresh application for bail on all the grounds presently available accruing at this point of time. N.H.Q./M‑572/K Bail declined.