1997 P Cr (PLP)

Date of hearing: 22nd January, 1997. Through Criminal Miscellaneous No.1972/B of 1996 and Criminal Miscellaneous No. 1997/13 of 1996 Mussarat Ellahi and Abdul Malik petitioners respectively seek their bail after arrest in a case F.I.R. No.148 of 1996, dated 15-7-1996 under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance-, 1979 read with section 380/411, P.P.C. registered at Police Station Sadar Muzaffargarh at the instance of Muhammad Ismail, brother of Mst. Mussarat Ellahi petitioner.

2. As the above said two petitions arise out of the same F.I.R., therefore, both are being disposed of by this single order.

3. Briefly the facts of the case are that Mst. Mussrat Ellahi petitioner wife of Abdul Aziz had come to visit the house of her brother, the complainant, and stayed there for a few days. It was therefrom that she was abducted by Abdul Malik, co-accused, as both of them were seen by the P.Ws. going on a motorcycle.

4. The case was registered and the investigation was resumed. On 25-7-1996 Mst. Mussarat Ellahi was produced before the learned Illaqa Magistrate where her statement under section 164, Cr.P.C. was recorded in which she had categorically stated that she was not abducted by any person and had, of her own, left the house of her husband, against whom she had filed a suit for dissolution of marriage.

5. Mst. Mussarat Ellahi petitioner had applied for bail before the learned Additional Sessions Judge-I, Muzaffargarh but the same was refused on 15-10-1996 while the request of the bail after arrest of Abdul Malik petitioner was earlier' `turned down by the said learned Court on 14-9-1996. Hence these two petitions.

6. Learned counsel for the petitioners has vehemently argued that as per statement of Mst. Mussarat Ellahi petitioner recorded under section 164, Cr.P.C. she was neither abducted by any person nor she was subjected to Zina by any one; that the investigation of this case was conducted by Mr. Pervaiz Tareen, D.S.P., Muzaffargarh who after a thorough probe into the matter had declared the case to be false and frivolous and had recommended for the cancellation of the same that the complainant Muhammad Ismail has already sworn an affidavit that the case was registered against the petitioners due misunderstanding caused by the P.Ws. who were inimical with the accused/petitioners. Lastly it was submitted that there was no evidence whatsoever to connect the petitioners with the crime.

7. Learned counsel for the State has not been able to controvert the contentions raised by the learned counsel for the petitioners. He rather concedes that the said D.S.P. had recommended for the cancellation of this case.

8. I have heard the learned counsel for the parties and have perused the record.

9. Admittedly the petitioners were found innocent during the investigation conducted by the D.S.P. City, Muzaffargarh who had also recommended for the cancellation of the case, the statement of the alleged abductee/petitioner recorded under section 164, Cr.P.C. absolve the petitioners of the offences alleged against them, the complainant, Muhammad Ismail has also sworn the affidavit that the case was registered due to misunderstanding caused by the P.Ws. who were inimical with the accused/petitioners, the guilty or innocence of the petitioner being subject to further inquiry, their case would attract the provisions of subsection (2) of section 497, Cr.P.C. entitling the petitioners to the concession of bail.

10. Under the above circumstances and without going deep into the merits of the case, the petitioners are allowed bail subject to their furnishing bail bonds in the sum of Rs.35,000 (Rupees thirty-five thousand) with two sureties each in the like amount to the satisfaction of the learned Illaqa/Judicial Magistrate, Muzaffargarh. N.H.Q./M-303/L Bail allowed.