MUHAMMAD ARSHAD Versus THE STATE
ORDER
This is an application for grant of bail to Muhammad Arshad son of Muhammad Ali in case F.I.R. No.137 of 1996, dated 2-5-1996 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Saddar Chichawatni, District Sahiwal after the same relief has been declined to him by the learned Additional Sessions Judge Chichawatni vide order, dated 18-4-1999.
2. Briefly stated the facts are that Mst. Samina Kausar daughter of Khalil Ahmad aged 13/14 years, a student of 8th class, reported at the Police Station that on 1-5 1996 in the early morning her family members had gone to Chak No.25/11-L for harvesting of wheat, she was all alone in the house, the outer door was open, when she went inside the residential room Arshad son of Muhammad Ali (petitioner) and Amin son of Akbar (co-accused) chased her in the room and took her in their grips. Arshad (petitioner) was armed with a Chhuri and he threatened that if she raised a noise she will be killed. Firstly Amin stepped forward, broke open her Shalwar, gagged her mouth with that Shalwar and committed Zina-bil -Jabr with her. Thereafter, Amin fetched the Chhuri from Arshad and Arshad committed Zina-bil-Jabr with her. She struggled and her shirt was torn. In the meantime her maternal uncle Rafiq and Abdul Hameed residents of Deh entered in the Haveli and-on seeing the actual commission of zina raised Lalkara whereupon both the accused decamped from there. She in the company of her uncle and father reported the matter to the police and produced the semen-stained Shalwar and Qameez.
3. Learned counsel for the petitioner contended that the petitioner is below the age of 18 years and ingredients of section 10 of the said Ordinance are not attracted; that the offence does not fall within the prohibitory clause of section 497, Cr.P.C., that the case of the petitioner is at par with the case of his co-accused Amin who has since been released on bail by a learned Judge of this Court vide order, dated 4-2-1997 passed in Criminal Miscellaneous No.1885-B-1996.
4. The bail is opposed on the ground that the petitioner is specifically named in the F.I.R., and specific role has been attributed to him.
5. I have given due consideration to the valuable arguments of both sides.
6. The tentative assessment of the record shows that the petitioner's date of birth as per Result Intimation by the Board of Intermediate and Secondary Education Multan against Roll No.40830 is 17-4-1978 while the date of occurrence of the offence is 2-5-1996. In this manner his age come to 18 years and 15 days. Co-accused Amin who was also attributed a similar role has been released on bail. In the case of Khadim Hussain v. The State (1983 SCMR 124), where co-accused was admitted to bail by the Sessions judge and the High Court rejected bail petition on the ground that his earlier bail petition had been dismissed the Hon'ble Supreme Court allowed bail on the ground that the case of the petitioner was similar to that of his co -accused released on bail by the Sessions Judge. Similarly in the case of Abdul Sattar v. The State (1982 SCMR 909) where the role attributed to the petitioner was similar to that of the co-accused the rule of consistency was applied even in a murder case and the bail was allowed to the petitioner. In the instant case the investigation is over. He remained absconding and had been arrested in some other case on 4-8-1998 and since then he is in jail. No marks of violence have been found on the victim as per Medico-Legal Report which also shows that she was used to E sexual intercourse and that during the investigation even co-accused Amin was found innocent. All these factors taken together and without going deep into the merits of the case, the case of the petitioner is that of further probe. As such the bail is granted subject to his furnishing bail bond in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of trial Court.
N. H. Q. /M-1134/L
Bail granted.