1997 P Cr (PLP)

Hafiz Muhammad Khalil for Petitioners. Ch. Muhammad Zafar for the Complainant. Masood Sadiq Mirza for the State. On 13-1-1997 at Police Station Darya Khan, Bhakkar a case under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Ghulam Farid and Sher Muhammad accused at the instance of Muhammad Nazir complainant. It was alleged that the aforesaid accused used to visit the house of the complainant and during these visits Ghulam Farid aforesaid developed illicit relations with the complainant's daughter-in-law Mst. Akram Parveen wife of Said Amin. On the night between 10th and 11th of January, 1997 the aforesaid two accused came to the house of the complainant to stay for the night. During the said night allegedly they abducted Mst. Akram Parveen aforesaid and that all three of them were seen boarding a train for Peshawar. It was further alleged that while going away the abductee had taken away valuable gold ornaments. The complainant is said to have contacted the relatives of Ghulam Farid for the return of the abductee who firstly put him off on different pretexts and then refused to do anything.

2. On 13-1-1497 the abductee was recovered and Ghulam Farid accused was arrested. In her statement under section 161, Cr.P.C. the abductee repeated the story contained in the F.I.R. and further stated that Ghulam Farid and Sher Muhammad accused had taken her to Peshawar where they subjected her to Zina-bil-Jabr. After her said statement she was allowed to go with her parents. On 12-3-1997 she appeared before a Magistrate for her statement under section 164, Cr.P.C. On her request the learned Magistrate sent her to Darul Aman. On 19-3-1997 she was, again produced before the said Magistrate at Darya Khan and her statement under section 164, Cr.P.C. was recorded. Her said statement materially differed from her statement under section 161, Cr.P.C She stated that on the fateful night Ghulam Farid and Sher Muhammad had come to the house of the complainant alongwith Mst. Karmai to stay for the night and that the aforesaid three persons had forcibly taken her to Peshawar in a wagon and that in Peshawar she was kept in a house alongwith Mst. Karmai where Ghulam Farid, Sher Muhammad, Fida and Mahboob committed Zina with her turn by turn. She further stated that she was then brought to Darya Khan by the aforesaid accused except Sher Muhammad and that she was recovered from the Dera of the said accused. In view of the said statement Fida Hussain and Mahboob were arrested on 13-3-1997 and 15-3-1997 respectively in this case.

3. Ghulam Farid, Mahboob and Fida Hussain accused, petitioners herein, have applied for their bail.

4. I have heard the parties' learned counsel and have also gone through the record.

5. The two statements of the abductee, dated 13-1-1997 under section 161, Cr.P.C. and dated 19-3-1997 under section 164, Cr.P.C. are self-contradictory on various points. The latter is also at variance with the case of the prosecution contained in the F.I.R. The names of Mahboob and Fida Hussain do not appear either in the F.I.R. or the abductee's statement under section 161, Cr.P.C. The abductee had mentioned their names for the first time after about two months of her statement under section 161, Cr.P.C. As such so far as the case of Fida Hussain and Mahboob petitioners is concerned it requires further inquiry and they are entitled to the concession of bail.

6. As regards Ghulam Farid petitioner his name has consistently appeared in the F.I.R. in the abductee's statement under section 161, Cr.P.C. and in her statement under section 164, Cr.P.C. Allegation of Zina is attributed to him. j He, therefore, is not entitled to the concession of bail as there is sufficient material on record to connect him with the crime charged against him. Learned counsel for the petitioner has submitted that Sher Muhammad accused whose role was similar to that of Ghulam Farid has been admitted to bail by the learned Additional Sessions Judge, Bhakkar and therefore, on the rule of consistency Ghulam Farid was also entitled to the concession of bail. Material available on record shows that the abductee had given an affidavit before the learned Additional Sessions Judge to the effect that she had no objection if bail was granted to Sher Muhammad accused. Consequently on her statement bail was allowed to him. Admittedly bail was not granted to the said accused on merits. A pertinent question arises if bail could be granted to an accused involved in a serious case merely on the statement of the complainant or a witness. Learned counsel for the complainant has submitted that he is moving an application for the cancellation of the bail of the said Sher Muhammad. In this view of the matter the order of the learned Additional Sessions Judge whereby Sher Muhammad accused was admitted to bail cannot be made a precedent for the grant of bail to Ghulam Farid petitioner. .

7. In view of what has been stated above the bail application to the extent of Ghulam Farid petitioner is dismissed. However, Mahboob and Fida Hussain accused are admitted to bail in the sum of Rs.30,000 each with one surety each in the like amount to the satisfaction of the learned Additional Sessions Judge-I, Bhakkar. N.H.Q./G-39/L Order accordingly.