1989 PLP 3257 (MLD)

Malik Muhammad Nawaz for the Complainant. Date of hearing: 29th May, 1989. The petitioner Aftab Hussain, who is involved in a case under section 10 and 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, registered at Police Station Westridge, vide F.I.R. No.234, dated 21-11-1988, has applied for grant of post-arrest bail.

2. The learned counsel for the petitioner submitted that the age of girl as 14 years, as shown in the police record is not correct. He has placed reliance on the photostat copy of form `B' which purports to have been submitted by the father of the girl, in which her date of birth has been shown as 1972. He has also placed reliance on the report of the Radiologist which shows the age of the girl as 18 years. He has placed reliance on Sheikh Hassan v. Bashir Ahmad and another PLD 1966 (W.P.) Peshawar 97 in which their Lordships have held that the best criteria to Judge the age of the girl or the accused is the Radiologist test and school leaving certificate cannot be relied upon as the best evidence to judge the age. He has also relied on 1987 PSC

177. The learned counsel has submitted that initially the abductee was made an accused and when she made statement on 29-12-1988, wherein she stated that she was subjected to Zina by the petitioner, she was got discharged by the police. Learned counsel submitted that there is evidence on the record to show that she went out of Pakistan and then she has been doing job in Karachi and prima facie, this is a case of elopement. In this respect he has placed reliance on Shabbir v. The State 1986 PCr.LJ 955 and Muhammad Amin alias Mohna v. The State 1986 PCr.LJ 2293 on the point that in case of elopement the bail should not be refused to the accused.

3. The learned counsel for the State assisted by the learned counsel for the complainant submitted that according to the school leaving certificate issued by the Principal of the School the date of birth of Mst. Samna Nawaz is 23-9-1974 i.e. less than 14 years at the time of commission of offence.

4. I have perused the record and have also ascertained the facts from the investigating officer. He stated him initially the abductee was made an accused persons which shows that she was a willing party. Thereafter she was made a witness and got discharged by the police on 30-4-1989. It appears that the girl was a willing party. The petitioner is believed to be in jail without any trial. In the circumstances, the petitioner is entitled to the concession of bail. He is accordingly admitted to bail in the sum of Rs. 50,000. (Fifty thousand only) with one surety in the like amount to the satisfaction of the A.C./Duty Magistrate, Rawalpindi. N.H.Q./A-636/L Bail granted.