1984 P Cr (PLP)

Date of hearing: 29th October, 1983. A case under sections 10 and 11 of Ordinance VII of 19'79, was registered against the petitioner Ghani Ahmad and his to accused Ata Muhammad on 31st August, 1983 at Police Station City Jhelum, in respect of an occurrence which had taken place at 7/8 p. m. on 29th August, 1983. According to the F. I. R. petitioner, Ghani Ahmad, who is running a grocery shop in Mohalla Mujahabad, Jhelum, and his said co‑accused were suspected to have abducted Mst. Nasreen Akhtar aged 14/15 years at 7/8 p. m. on 28th August, 1983, with the intention of committing forcible sexual intercourse with her. It is stated in the F. I. R. that Mst. Nasreen Akhtar had gone out to the fields in the evening on 30th August, 1983 and was missing since then and on the same evening Ghulam Rabbani and Muhammad Latif had seen a Burqa‑clad woman alongwith the petitioner and Ata Muhammad on the G. T. S. Bus‑Stand and that the three had boarded a bus for Lahore.

2. According to the prosecution, Mst. Nasreen Akhtar was found having alighted all alone from a bus at Jada Morr, Jhelum. Police present there interrogated her and took her into custody. She was produced before a Magistrate on 3rd September, 1983, where her statement under section 164, Cr. P. C. was recorded. The learned Magistrate recorded her age to be 17 years. In her statement under section 164, Cr. P. C. she stated that Ghani Ahmad petitioner on whose shop she had been going to make domestic purchases had asked her to marry him. She had refused and on that he had begun to threaten her with death and to frighten her and he and his co‑accused Ata Muhammad had abducted her and taken her to Sahiwal, and the petitioner had in the way got down from the bus and had sent her and Ata Muhammad onwards to Sahiwal promising that he would return within 2/3 days and would marry her but he did not return and that Ata Muhammad had taken her to the house of her mother in Chak No. 28, Sahiwal, with whom she had stayed for two nights. Ata Muhammad had gone out and she had escaped from the house and had boarded a bus from Sahiwal for Lahore and from Lahore she had come to Gujranwala and on the same day she boarded a bus from Gujranwala for Jhelum and when she had got down from the bus at Jada Morr, the police officer present there had, after interrogation taken her into custody.

3. Mst. Nasreen Akhtar was got medically examined on the same day. The lady Medical Officer said that she was of 17 years of age and there was no marks of injury on her person and private parts. Hymen was torn and admitted two fingers. It was also stated that she was mens truating at the time of examination. Two vaginal swabs were taken and sent to the Chemical Examiner. She also opined that sexual intercourse had been done with her.

4. The petitioner and the co‑accused were arrested do 4th September, 1983 and both were got medically examined on 4th September, 1983, and thereafter, on completion of investigation petitioner and co‑accused Ata Muhammad were sent to the judicial lock up on 4th September, 1983. They were challaned on 7th September, 1983 under section 10/I1 of Ordinance VII of 1979.

5. It may be noted that according to the decision of their Lordships of the Supreme Court in case of Khalid Javed Gillan v. The State (P L D 1978 S C 256), it is permissible to make tentative assessment of the evidence as at present available on the police record to find out if the petitioner can be extended the concession of bail.

6. There is no doubt that Mst. Nasreen Akhtar in her statement under section 164, Cr. p. C. had stated that on her refusal to have Nikah performed with the petitioner she had been threatened and put in fear of death. However, this appears to have been done some days before the occurrence and it has not been specifically stated by her that at the time of the said incident, she was forcibly taken to Sahiwal. As a matter of fact, according to the allegation made in the F. I. R. she was accompanying petitioner and co‑accused in a Burqa, wearing of which could not have been forced on her. Prima facie, therefore, at this stage, there is no evidence of force having been applied or deception having been played by the petitioner in taking her away. Therefore, the important ingredient to make out even a case of abduction appears at this stage to be missing in this case. 6‑A. Furthermore Mst. Nasreen Akhtar on her own showing had gone alongwith the petitioner and his co‑accused in a bus without complaining to any person at the bus stand or any passenger in the bus that she was being forcibly abducted. In case of Iqbal Shah v. The State (P L D 1981 F S C 284) it was held that such facts take the case out of the pale of section 11 of the Ordi nance.

7. In her statement no charge of petitioner having committed Zina with her has been levelled and by stating that petitioner had got down from the bus on the way from Jhelum to Sahiwal and had never returned to join her thereafter, she seems to have exculpated the petitioner of the charge under section 10 of the Ordinance. The absence of any allegation against petitioner in that regard appears to rob the alleged abduction of requisite intention to turn it into an offence under section 11 of the Ordi nance. Petitioner does not appear to have even an intention to get Nikah performed with her forcibly as he would not have parted with her in the way and would not have allowed Ata Muhammad co‑accused to take her if he had that intention. Mst. Nasreen Akhtar has not stated in her statement under section 164, Cr. P. C that any sexual intercourse was performed with her forcibly even after the petitioner had left her. The petitioner cannot, therefore, be presumed to have intention that she would be subjected to forcible illicit intercourse or Nikah with any other person. Therefore, on tentative assessment of the evidence on record no clear case under section 11 of the Ordinance is made out at this stage.

8. In view of the above, I grant bail to the petitioner in the sum of Rs. 30,000 with two sureties each in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Jhelum. M. B. A. Bail granted.