1976 PLP 157 (SCMR)

MUHAMMAD HALEEM, J.‑This petition for special leave to appeal is from the order of the learned Single Judge of the Lahore High Court, dated the 10th October. 1975, by which he declined to grant bail to the petitioner who was accused of having abducted Mst. Shamshad and of committing rape on her, in regard to which an F. I. R. was lodged by her brother. Liaqat Ali on 12th June, 1975 at police station Mamoon Kanjan. Mst. Shamshad was alleged to have been taken out of the house on the pretext of urinating by two ladies namely, Rashida and Surayya on the night intervening 8th and 9th June, 1975 but she did not return during the night whereupon Liaqat Ali and her uncle Rahmat Ali went to inquire from them, who showed ignorance of her whereabouts and as they were busy in trying to locate her, they met Muhammad Younis and Barkat Ali, who informed them that as they were coming down from a bus at bus stop Chak No. 202, they saw the abductee alongwith Abbas, Mahmood and another Abbas son of Muhammad and all the three alongwith the abductee then boarded a bus which left for Lyallpur. The petitioner having come to know that he was wanted in the above case, applied for bail before arrest which was refused by a learned Single Judge of the Lahore High Court on 12th August, 1975 Where after he was arrested and while in custody he made two attempts to get bail from the Iliqa Magistrate and the Additional Sessions Judge, Lyallpur but he was unsuccessful. Thereafter he moved the Lahore High Court for bail but again he was unsuccessful and the application was dismissed. The learned Single Judge took into consideration the age of the abductee which was stated to be 14 or 15 years in the F. I. R. and the allegation that she levelled against the petitioner that it was he who had raped her, as sufficient to disentitle him to bail as this offence (section 376) was punishable with imprisonment for life. The Assistant Advocate‑General, who had no notice of the petition but was called upon by the Court to state as to what he had to say, opposed the application but both the counsel stated that the petition be converted into an appeal and disposed of on the present record. We have, therefore, converted the petition into an appeal and heard the counsel for the parties. The learned counsel for the appellant has disputed the age of the abductee and so also that she was abducted. In support of his contentions he has filed a 'Nikah Nama' dated 11th June, 1975 and her statement recorded on that date by a First Class Magistrate, Lyallpur, in which she had stated that she had come to Lyallpur of her own accord from her house as her brother and uncle were proposing to marry her to an old person, which she did not like. He had also got her medically examined by the Medical Officer, District Headquarters Hospital, Lyallpur and her age was stated in the certificate to be 17 or 18 years. Again she was medically examined during the investigation of the case and her age was stated to be under 16 and to also that she was used to sexual intercourse. Lastly he relied on the 'Panchayat Nama' dated 27th June, 1975 in which it was stated that it was the petitioner who had produced Mat. Shamshad on the express understanding that she would be returned to him and that he would not be involved in any litigation. The grievance of tae learned counsel is that the learned Single Judge besides considering the F. I. R. has not applied his mind to the other material while denying bail to him. On the other hand the learned Assistant Advocate‑General has relied on the statement of the abductee dated 31st July, 1975.in which she had supported the prosecution case. Prima facie in the context of the material placed on record there is justification for the grant of bail in view of the opinion of the doctor as to the age of the abductee and her own statement that she had left the house of her own accord. It is true that she gave another statement to support the prosecution case but it will be for the trial Court to determine whether she was abducted or not in the context of her earlier statement. Equally whether' rape was committed will also depend on the out come of this determination. The learned Single Judge, it seems, has not applied his mind to the other material but surely based his conclusion on the allegations in the F. I. R, which was not a correct approach to the problem. We would, therefore, allow him bail in the sum of Rs. 10,000 with P. B. and on, surety in the like amount to the satisfaction of the Inquiry Magistrate, Lyallpur. The petition is allowed and the impugned order is set aside. Appeal accepted.