WAHID BUX Versus THE STATE
ORDER
The petitioner has been arrested under section 10 (3)/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 458/148/149, P.P.C. He has petitioned for being released on bail.
2. According to the facts narrated in the F.I.R. Muhammad Nawaz the complainant is a gardener in Dubai Palace, Bahawalpur. Khuda Bakhsh son of Sher Muhammad and his wife used to visit his house as they wanted to marry their son with Mst. Shamim Mai aged 13/14 years, the daughter of the complainant. The complainant and his wife were averse to the said match on account of the minority of Mst. Shamim and the bad character of the son of Khuda Bakhsh. Khuda Bakhsh threatened to lift Mst. Shamim Mai forcibly. On 24-6-1987, at about 3-00 a.m. the complainant was asleep in the courtyard of his house alongwith his children when he was awakened by the barking of a dog and saw Zahoor Ahmad alias Jhoora armed with spear, Allah Wasaya son of Faiz Muhammad, Ghulam Nabi, Ghulam Fareed son of Khuda Bakhsh and Khuda Bakhsh armed with a gun each. The petitioner was also with them while armed with a soti. All of them entered the house of the complainant and Ghulam Fareed placed his gun oh the chest of the complainant and intimated him that he would teach a lesson of not giving hand of Mst. Shamim Mai to the son of Khuda Bakhsh. He raised an alarm and Zahoor Ahmad injured his left wrist with a spear, whereas Wahid Bakhsh the petitioner gave soti blows to the complainant. Khuda Bakhsh and Allah Wasaya forcibly dragged Mst. Shamim outside the house and she was made to ride a mare standing outside the house and Ghulam Nabi galloped away the mare on which Mst. Shamim was also seated. Muhammad Nawaz lodged the F.I.R. at 1-30 p.m. on 24-6-1987.
3. The learned counsel appearing for the petitioner had cited Atta Muhammad v. The State 1984 P Cr. L J 927 which lays down that bail should be granted to a person who was not guilty of Zina and was in jail for the last six months. In Sher Din v. The State 1987 P Cr. L J 904, the bail was granted to a person whose challan was not submitted for a period of four months. In Ahmad Ali v. The State 1987 P Cr. L J 975 the F.I.R. was found materially different from the statement of the abductee and no allegation of rape was levelled against the accused and bail was granted to the accused. In a similar case cited by the learned- counsel for the petitioner namely, Muhammad Yasin and another v. The State 1986 P Cr. L J 883, bail was allowed to the alleged abductor against whom no allegation of rape was made and the abductee was shown eighteen by years.
4. Dhano alias Dhani Bukhsh v. The State 1984 P Cr. L J 16 has been referred to by the learned counsel for the petitioner in which it has been held that the accused had entered the compound of the complainant's house but caught outside the room and it was held that he was not liable for committing house trespass but was liable for the offence of criminal trespass. In the said precedent, it has not been explained whether the compound of the house was enclosed by walls. In the instant case, the Investigating Officer has explained that the courtyard where the complainant was asleep with his family members has an enclosing wall which is a part of the house and in this manner 1984 P.Cr. L.J. 16 does not apply.
5. Conversely, the learned counsel for the complainant has cited Muhammad Amin and another v. The State 1982 P Cr. L J 110 in which a minor girl of 131 years old was kidnapped and she was compelled to marry one of the petitioners against her will. Although a nikahnama was produced, the bail was declined to the accused.
6. In this case no allegation of rape has been levelled against the petitioner. Ghulam Nabi and Ghulam Fareed are alleged to have committed rape with the minor daughter of the complainant aged about 13/14 years the petitioner who was armed with a soti not only facilitated the offence of kidnapping but he injured the complainant on his left arm and thereby causing a grievous injury. He alongwith his accomplices are alleged to have committed house trespass and caused grievous injury. The offence is covered by the restriction embodied in section 497, Cr.P.C. I, therefore, decline to admit the petitioner to bail and dismiss his bail petition.
M. A. K./W-13/L Petition dismissed.