2007 P Cr (PLP)

HASNAT AHMAD KHAN, J.

Through this petition Muhammad Nasir, petitioner has sought post-arrest bail in case F.I.R. No.117 of 2005 dated 30-3-2005 registered at Police Station City Muzaffargarh in respect of offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.

2. Precise allegation against the petitioner as levelled in the F.I.R. is that' on 28-3-2005 he along with his co-accused Shakil Ahmad and Mst. Kubra had abducted Atia Mumtaz, daughter of the complainant, for illicit purposes. On the move of the complainant the above mentioned F.I.R. was registered.

3. During the pendency of investigation the alleged abductee could not be recovered before 9-4-2006. In the meanwhile on the basis of supplementary statement of the complainant one Rashid was involved in the said case. The petitioner allegedly became proclaimed offender and he was ultimately arrested on 6-1-2006. The abductee resurfaced on the backdrop when she was produced before the Investigating Officer by Mumtaz Hussain, her father on 9-4-2006. On the basis of statement made by the abductee, section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was also added in the list of offences allegedly committed by the, accused. After dismissal of application for post-arrest bail by learned Additional Sessions Judge, Muzaffargarh wide order, dated 16-10-2006 the petitioner has approached this Court for bail after-arrest.

4. In support of this application learned counsel for the petitioner has contended that the prosecution story is totally false and frivolous; that the petitioner is as innocent as lamb; that after recovery the abductee/victim had -not levelled the allegation of Zina against the petitioner, that all the co-accused including Rashid, who is .principal perpetrator in this case, have already been allowed bail, therefore the petitioner is entitled to bail on the principle of consistency also.

5. Conversely, the learned Deputy Prosecutor-General had strenuously opposed the bail application on the ground that the petitioner is involved in a horrendous and abominable crime of abduction and sale of the abductee. He adds that the petitioner is specifically named in the F.I.R. Further maintains that the petitioner remained absconder for sufficiently long time and therefore, he is not entitled to bail.

6. Auer hearing the arguments put forth by both the parties I have gathered that the F.I.R. in this case was lodged with a delay of two days. It has been further noticed that according to the contents of the F.I.R., no force was employed by the accused for the abduction of the victim rather she, allegedly, accompanied the accused willingly. The contents of the F.I.R. further depict that Sabir Hussain and Ali Raza, P.Ws. had allegedly seen the abductee in the company of petitioner, Shakil and Mst. Kubra, co-accused while standing on a bus stop. During the investigation the complainant moved an application before the D.P.O. Muzaffargarh whereby he inducted Rashid co-accused in this case. Interestingly in said application the complainant changed the set of eye-witnesses who on the date of occurrence had allegedly seen the victim in the company of the petitioner as well Shakil and Mst. Kubra, co-accused. The Police Officer present in the Court has stated that the petitioner was arrested on 6th June, 2006 but during his physical remand the victim could not be recovered. According to him the abductee was produced before the investigator by her father on 9-4-2006. Thereafter, her statement under section 164, Cr. P. C. was recorded on the said date. According to the said statement she was taken away from her house by Mst. Kubra, co-accused; on the pretext of fetching some medicine. She had further stated 'that when she reached near a petrol pump at Multan Road Nasir petitioner also reached there. According to her all the three accused took her away at some unknown place near Chowk Kumharanwala at Multan where Rashid, co-accused also reached whereafter the petitioner and the other .two co-accused namely Mst. Kubra and Shakil departed while leaving the abductee in the company of said Rashid. She went on to state that thereafter-she was kept by Rashid, co-accused who used to commit Zina-bil-Jabr with her. According to her after about 20 days Rashid, co-accused took her away to Lahore where she was kept under the guard of tour persons namely Muhammad Azam, Wasif, Farooq and Ismaeel who according to her also had been committing Zina with her. After some months Rashid co-accused reportedly, returned back leaving her in, the custody of Muhammad Azam; who allegedly sold her to Zulfiqar who in turn contracted marriage with her. According to the abductee after finding opportunity she returned to her parents. The perusal of said statement further reveals that the abductee had neither levelled allegation of rape against the petitioner nor did she level the allegation of selling her, against the petitioner. His co-accused namely Shakil who had played a similar role in the alleged occurrence has already been granted bail by this court vide order, dated 22-9-2005 passed on Criminal Miscellaneous No.2442/B of 2005. Similarly Rashid, co-accused who is the main accused of this case had been granted bail by the learned Additional Sessions Judge, Muzaffargarh vide order, dated 2-11-2005. Allegation of Zina-bil-Jabr and sale of the abductee had been levelled against the said co-accused. Meaning thereby that he was principal accused of this case. The narration of above mentioned facts clearly shows that the case of the petitioner requires further inquiry under section 497(Z), Cr.P.C.

7. The only thing which goes against the petitioner is the fact that he had remained absconder. It is true that absconders lose some of their normal rights and normally bail is not allowed in such-like offenders but it is also a fact that in said eventuality the bail is refused on the rule of propriety which of course cannot override the right. As held above the case of the petitioner has been found to be that of further, inquiry and therefore, he has become entitled to bail as a matter of right. Therefore, the bail cannot be refused to him just on the rule of propriety. While holding so I am pinning my faith on a case of Muhammad Ismail v. Muhammad Rafiq PLD 1989 SC

585. Besides that another factor which is going in favour of the petitioner is his fairly long detention/incarceration in this case. Admittedly he was arrested on 6-1-2006 and despite the expiry of a period of 1-1/2 years, I nm told that, the charge in this case has not yet been framed. Early conclusion of trial is basic right of every accused which has been denied to the petitioner who is entitled to bail on the principle of rule of consistency also because including the principal accused all the other co-accused have already been allowed bail.

8. For what has been stated above the application in .hand is accepted and the petitioner is allowed concession of post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000 with two sureties in the like amount to the satisfaction of the trial Court. N.H.Q./M-387/L Bail allowed.