1984 PLP 1545 (MLD)

Asif Saeed Khan Khosa assisted by Mian Bashir Ahmad Bhatti, for Petitioner. Sarder Muhammad Rafique Khan for the State. Date of hearing: 25th June, 1983. This bail petition has been filed on behalf of Ashiq Hussain who stands arrested under section 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for having abducted Mst. Khurshid Mai, wife of Allah Wasaya, complainant in this case in order to seduce her to illicit intercourse. The case was registered at Police Station, 8addar D.G. Khan, with a delay of 4 days. During the investigation Mst. Khurahid Mai was allegedly recovered from the custody of the petitioner on 13-3-1983 and was arrested as co-accused. She was, however, allowed interim bail by the Additional Sessions Judge, D.G. Khan on 14-3-1983 but she did not appear before him thereafter for confirmation of her bail because she was stated to have been taken away by the brother of the petitioner against whom a case was registered. On this ground the petitioner who had approached the Court of Sessions Judge for the grant of bail was declined, hence this petition.

2. I have heard the learned counsel for the petitioner as well as for the State and also perused the record.

3. At the outset, the learned counsel for the petitioner submitted that no case whatsoever regarding the abduction of Mat. Khurshid Mai by brother of the petitioner has been registered which means that the statement to this effect made before the learned Sessions Judge was not correct. Learned counsel for the State as well as the Sub-Inspector present in Court have not controverted this assertion. It is next argued that the only allegation against the petitioner is that he was seen in the company of the abductee which does not establish without any tangible evidence being on the record that he was keeping her in his company for the purpose of committing illicit intercourse or for that matter she was to be seduced to submit to the petitioner or somebody else for illicit intercourse. The Sub-Inspector states that there is no evidence on record to show that at the time of recovery of the abductee from the custody of the petitioner he had committed illicit intercourse with the abductee. Reliance has been placed on Afadat v. State P L D 1982 F S C 52 wherein it has been held that if a married woman accompanies any Ghair Mehram of her own free will this factor is not punishable under any provision of the aforesaid Ordinance or the Pakistan Penal Code. It is stated on the authority of this precedent that in the absence of any tangible proof that the petitioner had ever committed Zina with the abductee the petitioner cannot be accused of the offence under section 10/11 only for which he has been charged in the case.

4. It is admitted that the petitioner is in jail for the last three months and the trial has not so far commenced. Also I find that it needs further inquiry as to whether the petitioner had enticed/taken away Mst. Khurshid Mai for any of the purposes enumerated in section 11 of the aforesaid Ordinance. The case of the petitioner, therefore, squarely falls under subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed. The petitioner be released on bail subject to his furnishing a bond in the sum of Rs.10,000 (Rupees ten thousand only) with one surety in like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Dera Ghazi Khan. S. G. D. Bail granted.