MUHAMMAD RAFIQ Versus THE STATE

ORDER

A Case was registered at the instance of Mst. Manzooran Bibi, under sections 11 and 13 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, against the petitioner and three others at the Police Station, Saddar Sialkot vide F. I. R. No. 362 dated 13th July, 1981. Mst. Manzooran Bibi as complainant stated in the F. I. R. that she had a daughter, namely Mst. Bushra Bibi who was a minor. Muhammad Rafiq petitioner had developed common relations with the family and was on visiting terms. On 12th July, 1981 the informant was away when the accused (petitioner) and others, namely Muhammad Ashiq, Mst. Ghulam Fatima and Mst. Zubeda came to the house and forcibly abducted Mst. Busbra Bibi. After the registration of the case Mst. Busbra Bibi was arrested on 18th July, 1981 and produced before a Magistrate on 21st July, 1981. Her statement was recorded under section 164, Cr. P. C. wherein she confirmed the facts as stated in the F.I.R. The petitioner was also arrested. He made a second application before the learned Additional Sessions Judge, Sialkot who vide his order dated 7th October, 1981 dismiss ed his bail application.

2. The learned counsel appearing on behalf of the petitioner has contended that Mst. Bushra Bibi at her own accord married the petitioner on 13th July, 1981 and has relied upon the registered Nikah Nama appended with this application as Annexure `B'. He has contended also that the D. S. P. Saddar, Sialkot who was also affiliated with the investiga tion of this case bad given his opinion that according to his investigation the petitioner was innocent. Ths medical evidence on the record also contributed to the fact that it was not a rape case since the signs appurtenant to rape were not present. The statement made under section 164, Cr. P. C. was made by Mst. Bushra Bibi immediately after she remained in the custody of the Police for three days. In the presence of these circumstances the case, at least, appears to be a fit one for further inquiry.

3. The learned counsel for the State has submitted that the learned Additional Sessions Judge dismissed the bail application after giving good reasons. The order as it is justified in view of the circumstances. Since such unfortunate incidents do occur now and then involving not only the injury to the victim but also affecting the reputation of noble families, he has insisted on the importance of the statement of Mst. Bushra Bibi urging it as a sufficient material confirming the commission of the crime, hence the petitioner is not entitled to bail.

4. Before I proceed with the contentions of the learned counsel for the parties I deem it proper to mention the reasons furnished by the learned Additional Sessions Judge towards the rejection of the bail application:

"There is no denying the fact that the opinion of the D. S. P., Sadar, Sialkot to the effect that Mst. Bushra was a consenting party is not being acted upon as that the petitioner is being challaned for the offence complained. It is well settled that the opinion of the Investigating Officer in regard to the innocence of the accused is not at all binding on the Court In her statement under section 164, Cr. P. C. dated 21st July, 1981 Mst. Bushra the prosecutrix did level the allegation of abduction against the petitioner. She has alleged that her Nikah with him was performed by force. According to her, her jewellery had been snatched away by the real brother of the petitioner ...................... there are reasonable grounds to believe that the petitioner is linked with the commission of crime complained. I, therefore, do not feel inclined to allow him the relief of bail."

5. I have considered the contentions of both the sides. My tentative opinion for the purpose of bail is that the medical report shows that the age of Mst. Bushra Bibi is 17 years as against the age of 20 years mentioned in the nikahnama. Therefore, prima facie, on the face of the nikahnama (Annex. `B') it can be counted as one circumstance in favour of the petitioner. The medical report does not reveal any sign akin to the com mission of rape. It says that with the exception of old wears and tears on the private parts Mst. Bushra Bibi appears as used to sexual inter course. As to her statement made under section 164, Cr. P. C., it is not to be overlooked that after her arrest she remained for three days in the custody of the Police before she was produced before the Magistrate for recording her statement. In view of this circumstance, it appears that true state of the facts would only be brought out by evidence to be led at the trial stage. For me it appears a case of further inquiry so as to come to the conclusion that nikahnama is fake or was brought into existence by exercise of any force wherein Mst. Bushra Bibi was not a consenting party or was a minor and the statement made under section 164, Cr. P. C. represents the actual truth.

6. So far as the opinion of the learned Additional Sessions Judge is concerned, it is not entitled to weight since he has not taken all the circumstances in conjunction with each other. His observation that the opinion of the Investigating Officer is not binding on the Court, lacks the appreciation to the effect that it is, at least, one of the circumstances which can be taken into consideration alongwith the other circumstances, for the purpose of grant of bail. As to his reliance on the statement of Mst. Bushra Bibi, under section 164, Cr. P. C., be has not taken into consideration the circumstances in which she was placed at the time of making her statement. The learned Additional Sessions Judge appears not to have attached proper significance to the nikahnama read with the medical report. So far the repetition of application before him is concerned I am mindful of the fact that the case is otherwise fit for bail, therefore, this aspect will not make much of difference. In view of my, above observations in the case I do not agree with the contentions raised by the learned State Counsel.

The petitioner is accordingly enlarged on bail on his furnishing bail bond in the sum of Rs. 5,000 (Rupees five thousand) with one surety B in the like amount to the satisfaction of the Assistant Commissioner, Sialkot..

Bail allowed.