UMER DRAZ vs THE STATE

ORDER

' IQBAL HAMEED-UR-REHMAN, J.--- The learned counsel seeks post-arrest bail of the petitioner in F.I.R. No,159 of 2008 dated 14-4-2008 under sections 496-A, 376, 365-B, P.P.C. Registered at Police Station Chinab Nagar, District Jhang.

2. Briefly, according to the F.I.R. The allegations against the petitioner are that he forcibly abducted the wife of the complainant namely Mst. Naureen and her son.

3. According to the learned counsel for the petitioners there is a delay of 20 days in lodging of the F.I.R. For which no explanation has been given; that the abductee made the first statement under section 164, Cr.P.C. On 5-4-2008 against the complainant before the Illaqa Magistrate wherein she stated that the complainant is a very cruel person; that he has been torturing her and that he is an addict person and has been compelling her to commit adultery and that the complainant also tried to kill her with Toka. In view of the statement of the abductee she requested that she be sent to Darul Aman. The learned Illaqa Magistrate vide order dated 5-4-2008 lodged her in Darul Aman.

Thereafter, the abductee made second statement under section 164, Cr.P.C. While entering into compromise with the complainant by taking a complete somersault. The petitioner was not allowed to cross-examine her; as such the same cannot be taken into consideration. That no report of the Chemical Examiner is available on the file. The learned counsel for the petitioner further submits that thereafter a compromise was effected between the complainant and the abductee as a result of which the abductee got herself released from the Darul Aman on 31-5- 2008. Thereafter, after a delay of 18 days i,e, on 3-6-2008 the abductee was medically examined.

This delay shows mala fide on the part of the complainant. It is further stated that even the F.I.R.

Was lodged with a delay of 20 days i,e, on 14-4-2008 whereas the occurrence took place on 24-3- 2008. It is further stated that no recovery has been effected from the petitioner.

4. On the other hand, learned Assistant Prosecutor-General, Punjab vehemently opposed the grant of bail to the petitioner contending that the subsequent statement under section 164, Cr.P.C. Got recorded on 3-6-2008 the abductee fully clarified her earlier conduct that the same has been done under coercion as the accused party had threatened to harm the minor son of the abductee, who was in their custody; that the petitioner is fully involved in the case although no recovery has been effected from the petitioner and that the challan has been submitted in the trial Court.

5. Arguments heard, record perused.

6. There is enough material on the record to show that the abductee has been changing her stance. It is an admitted fact that the abductee had got recorded her statement under section 164, Cr.P.C. Before the Illaqa Magistrate and in her statement she had made serious allegations against the complainant, who is stated to be a very cruel person and has been torturing her and she had requested that she be lodged in the Darul Aman and accordingly, she was lodged in Darul Aman.

Thereafter on a compromise between the spouses the abductee was released from the Darul Aman on 31-5-2008 and after her release she got her statement recorded under section 164, Cr.P.C. Fully involving the petitioner in this case. In the presence of two contradictory statements, the case of the petitioners becomes that of further inquiry. There has been a consistent view of the superior Courts that her statement should be taken with great care and caution as to what was the legal effect of the said latter statement where the abductee has been changing her stance. Allegedly the abductee who had resiled from her previous statement, being a pliable person, who had made different statements at different times, her testimonies are to be taken with caution and care. Moreover, the medical examination of the abductee had been conducted after the lapse of 18 days and taking of her vaginal swabs after such a long time was of no significance, especially in the absence of report of Chemical Examiner. Posibility of false implication cannot be ruled out. There is no direct evidence against the petitioner, which could connect him with the commission of the said offence other than the second statement of the victim, in the presence of contradictory statements of the victim in absence of any strong corroboration, cannot be relied upon.

6-A. For the foregoing reasons, relying upon the cases of Zahoor Hussain Shah v. The State 2008 YLR 2797, Manzoor Ahmed v. The State 2008 YLR 2351, and Anwar and others v. The State 2006 PCr.LJ 710, this bail application is allowed subject to petitioner's furnishing surety bond in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the trial Court.