2008 PLP 1044 (MLD)

MUHAMMAD AHSAN BHOON, J.

Petitioner (Rana Imran Jameel son of Jameel Ahmad, Caste Rajput) seeks post-arrest bail in case F.I.R. No.50 of 2008, dated 9-2-2008 offences under sections 376/365-B and 511, P.P.C. read with Article 11 of Prohibition (Enforcement of Hadd) Order, 1979 registered with Police Station, City Gojra, District, Toba Tek Singh.

2. Briefly allegation against the petitioner and his co-accused is that they on gun-point abducted Mst. Asma Shafique complainant and her friend Mst. Sana Naz. Thereafter, petitioner and his co-accused made an attempt to commit Zina with them. During the coarse of investigation there was no allegation of Zina, so the offence under section 365-B, P.P.C. was deleted vide case Dairy No. 11, dated A 19-2-2008.

3. After hearing the learned counsel for the parties and going through the case Diary No.11, dated 19-2-2008, wherein Investigating Officer Muhammad Hussain, S.-I. has concluded that during the course of investigation he reached at the conclusion that both the alleged victims were not abducted on gun-point rather they both accompanied the petitioner with their free consent on a motorcycle and they kept on roaming around. Hence the co-accused Amjad, was declared innocent, whereas petitioner was challaned under sections 376, 511, P.P.C. read B with section 11 of Prohibition (Enforcement of Hudd) Order, 1979. On going through the whole file there is no allegation of rape or Zina against 'any accused. It is astonishing as to how the provisions of 376 has been attracted, when same is not at all applicable to the facts and circumstances of the present case and evidence available on record and similar is the situation with regard to section 511, P.P.C. on perusal of the whole file and allegation levelled against the petitioner and his co-accused, prima facie, it seems that case falls within purview of section 496-A, P.P.C. for which the punishment provided is seven years which does not fall within prohibition contained in subsection (1) of section 497, Cr.P.C. Section 496-A, P.P.C. is reproduced below:- "496-A. Enticing or taking away or detaining with criminal intent a woman.

Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." A very important aspect has been noted by me that a man and woman not married to each other, if they have sexual intercourse with one and other are said to commit fornication which is an offence punishable under section 496-B, P.P.C. and maximum punishment of said offence is five years along with fine of Rs.10,

000. Section 496-B reads as follows:- "496-B. Fornication.--(1) A man and a woman not married to each other are said to commit fornication if they wilfully have sexual intercourse with one another. (2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees." The above quoted provision would show that the punishment of wilfully sexual intercourse is lower than for offence wherein even no illicit intercourse has been performed, it does not appeal to reason that a man and woman, who are major, pubert, sui juris, have wilfully gone to some place and they have done nothing and yet they are liable for prosecution. During the course of investigation no weapon of offence as alleged by the complainant was recovered from the petitioner rather only motorcycle was taken into possession by the I.O., which was used for ride by only petitioner as well as by both alleged abductees. Petitioner is behind the bars since his arrest and no more required for the purpose of investigation.

4. For what has been discussed above, this petition is allowed and petitioner is granted post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees One Lac only) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./I-15/L Bail granted.