1992 PLP 991 (MLD)

The accused petitioners seek bail by filing Criminal Misc. application who are charged under section 11/16 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 452/34, P.P.C., vide F.I.R. No.49 dated 11‑5‑1991, Police Station Khanpur, District Haripur.

2. The report in this case was lodged by Mst. Walayat Jan on 11‑5‑1991 at 1700 hours wherein she stated that today at Peshin Wela she along with her son Abdul Hamid and daughter Mst. Imtiaz Bibi aged 13/14 years was present in the house. They noticed a Suzuki stopped outside of their house and from the Suzuki Abdur Razaq, Muhammad Mushtaq sons of Sultan and Ghulam Sarwar son of Muhammad Aslam came out and entered the house. As soon as the accused entered the house out of which Ghulam Sarwar and Mushtaq caught hold of Imtiaz Bibi, dragging her and took her outside the house: When the complainant and her son Abdul Hamid tried to intervene they were beaten by Abdur Razzaq and Ghulam Sarwar accused with fists and kicks. The accused made Mst. Imtiaz Bibi sit in the Suzuki of white colour No.144/577/Karachi and kidnapped her. Beside the aforementioned accused, Malik Habib son of Abdul was also sitting in the Suzuki while Muhammad Ashfaq was driving the Suzuki. The alleged motive for the offence is that the accused had asked the hand of Mst. Rashida Bibi daughter of the complainant' for Abdur Rashida Bibi was married to Muhammad Nisar and on this account the occurrence took place. She further stated in the F.I.R. that her husband Abdur Rashid had married Parveen resident of Taxila for the last 16/17 years and he is residing in Rawalpindi with his wife and children. She stated that her husband is not maintaining her. She charged Muhammad Mushtaq, Abdur Razzaq, Ghulam Sarwar, Malik Habib and Ashfaq.

3. The accused made bail application before the Illaqa Magistrate and were released on bail by the Magistrate on 23‑5‑1991. The complainant moved application for cancellation of their bail before the Court of learned Addl. Sessions Judge‑II, Haripur which was accepted on 2‑7‑1991 and the learned Addl. Sessions Judge recalled the order of bail granted by the Illaqa Magistrate.

4. I have heard the learned counsel for the accused petitioners, learned counsel for the complainant, learned Asstt. Advocate‑General and have perused the record.

5. According to the F.I.R. the age of Mst. Imtiaz Bibi is recorded as 13/14 years and according to X‑ray report her age is shown as 15 years. The accused petitioners are directly charged in the F.I.R. for abducting Mst. Imtiaz Bibi from the house where she was living with her mother. The local police recovered the abductee from the house of the accused Abdur Razzaq. There are eye‑witnesses of the occurrence who charged the accused petitioners for the offence. The statement of the abductee Mst. Imtiaz Bibi was also recorded and she has charged the accused petitioners for the commission of the offence. She also charged Abdur Razzaq accused for attempting to commit Zina with her but the abductee resisted and he did not succeed.

6. The learned counsel for the accused petitioners submitted that according to section 2(a) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, she has attained puberty because according to the medical examination her breast and pubic hairs are developed, therefore, he submitted that she was major and had gone with the accused on her own accord. The above argument of the learned counsel has no force because the age given by the mother of the complainant will also be considered which is 13/14 years and according to the X‑ray report the age of the abductee is‑ shown 15 years. She would have been considered as adult if she had attained the age of 16 years. In any case she is below 16 years and she cannot be considered an adult to make a free decision at her sweet will. The learned counsel for the accused petitioners further submitted that Abdur Rashid father of the abductee has been examined under section 161, Cr.P.C. and he had stated that he took Mst. Imtiaz Bibi to the house of Mst. Sughra and she was not abducted by any one. Again this argument is without force because Abdur Rashid, father of the complainant was living in Rawalpindi with another wife and he gave this statement after 17‑5‑1991 i.e. after six days of the occurrence. If he had any sympathy with his daughter he should have known the occurrence before and soon after the occurrence he should have given the statement.

7. For the above reasons, this bail application has no force and is hereby rejected. H.B.T./1243/P Application rejected.