1997 PLP 2276 (MLD)

Syed Amjad Ali for the State. Shabir Hussain Shah for the Complainant. Date of hearing: 30th August, 1995. Petitioners, Muhammad Parvez, and his father Seen Muhammad were arrested by the Police in case F.I.R. No.42 dated 15‑4‑1995, Police Station Bakot, District Abbottabad, under section 5/10/11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered on the information of Muhammad Younas, that his 'unmarried niece Mst. Nagina Bibi aged 17/18 years had been abducted by the petitioner and his father. The complainant, according to the F.I.R., was not present in the village at the time of the alleged abduction, which took place on 13‑4‑1995, but was informed by his brother Muhammad Yousaf, father of the abductee, on telephone at Lahore, where the complainant was residing at the relevant time. Thereafter, the complainant came to the village and lodged the report, two days after the occurrence. The reason for Muhammad Yousaf not making the report personally is given to be his indisposition.

2. The Magistrate admitted both the petitioner and his father to bail on 30‑4‑1995 by pointing out to the discrepancies in the statement of the abductee and her other uncle, Abdul Qayyum, as well as to the unexplained delay in lodging of the F.I.R.

3. On an application by the complainant the Sessions Judge, Abbottabad, recalled the bail granted to the petitioner but declined to cancel the bail of his father. The learned Sessions Judge relying upon the statement of the abductee, recorded under section 164, Cr.P.C., held that the case against the petitioner prima facie fell under clause (d) of subsection (1) of section 6 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as the petitioner had indulged in illicit sexual intercourse with the abductee, who was made to believe by the petitioner that the two were legally wedded to each other. The petitioner now has applied to this Court for his release on bail.

4. Learned counsel for the petitioner maintained that the learned Sessions Judge was not justified in interfering with the discretion exercised by the Magistrate in favour of the petitioner. He further pointed out that the statement of the abductee, recorded on 24‑4‑1995, nine days after the registration of the case, is not credible to the extent of her belief about her ' Nikah' with the petitioner. In this context he added that the conduct of the abductee was not above‑board and that she was a woman of easy virtue. That she kept silent over her relationship with the petitioner for 7/8 months and cooked up the present story after she reached the stage of late pregnancy.

5. Learned counsel for the complainant, on the other hand, argued that in cases involving sexual offences, the statement of the victim is generally considered as sufficient evidence against the offender. Thus, the statement of Mst. Nagina Bibi about deception played by the petitioner on her about the Performance of ' Nikah' was enough to bring the conduct of the petitioner within the ambit of clause (d), subsection (1) of section 6 of the Ordinance.

6. The case of the prosecution initially was that of an abduction of Mst. Nagina Bibi by the petitioner and his father. However, the F.I.R., did give an indication about the relationship between the petitioner and Mst. Nagina Bibi. However, the statement of Mst. Nagina Bibi ostensibly made it a case of Zina?bil‑Jabar. She admitted having indulged in sexual intercourse regularly with the petitioner for a period of 7/8 months prior to the registration of the F.I.R., but at the same time stated that she consented to the same under the impression that she was the legally wedded wife of the petitioner, which as created by the petitioner by asking her to sign certain documents and then told her that these were 'Nikah Nama'. From the signature appearing on her statement recorded under section 164, Cr.P.C., it appears that Mst. Nagina Bibi is an abducted lady and, therefore, presumably aware about the formalities required for the performance of a 'Nikah'. In the absence of the documents allegedly signed by her and further corroboration of her story, the possibility that she never signed any documents cannot be ruled out. Proceedings on the premises that Mst. Nagina Bibi wilfully indulged in sexual intercourse without believing that she was wedded to the petitioner, her conduct would be as blameworthy as that of the petitioner. Thus, the question whether the petitioner has deceitfully obtained the consent of Mst. Nagina Bibi to indulge in sexual intercourse with him would be one of the further inquiry. For the foregoing reasons, application for bail is allowed and the petitioner is admitted to bail in the sum of Rs.50,000 with two sureties in the like amount each to the satisfaction of the Illaqa/Duty Magistrate. N.H.Q./1970/P ?????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.