GHULAM MUHAMMAD AND 2 OTHERS Versus THE STATE
ORDER
The F.I.R. No. 51/87 was registered on 13‑2‑1987, at Police Station Hasilpur under sections 11/19, 10(2), of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the statement of Mehnga son of Noor Muhammad concerning an alleged occurrence having taken place a day earlier at about evening time. The allegations in the F.I.R. are that Muhammad Anwar co‑accused abducted the daughter of first informant, Mst. Mumtaz Mai, for committing Zina with a view to saving himself from proceedings initiated against him in an earlier case of abduction and Zina‑bil‑jabar concerning Mst. Mumtaz Mai. It was alleged that Allah Yar petitioner and Muhammad Ramzan co‑accused were armed with hatchets and Muhammad Bakhsh petitioner was armed with a revolver at the time when the disputed occurrence took place. The further allegations were that Mst. Mumtaz Mai had been earlier abducted by Muhammad Anwar co‑accused for committed Zina‑bil‑jabr and that he was on bail in that case. When the present occurrence took place, the petitioners filed an application for bail after arrest on the allegation that the petitioner No. 1 was not named in the F.I.R.; that he was about 80 years of age; that petitioners Nos. 2 and 3, who are sons of petitioner No.1, had been involved in this false case on account of enmity and that petitioners have illegally been denied the concession of bail vide order, dated 6‑5‑1987 although their case requires further enquiry as the above mentioned Mst. Mumtaz Mai and Muhammad Anwar had contracted Nikah on 11‑2‑1987.
2. Learned counsel for the petitioner has mainly relied upon the statement made by Mst. Mumtaz Mai before a learned Magistrate 1st Class, Bahawalpur under section 164, Cr.P.C. to contend that the alleged abductee did not implicate the petitioners in any manner whatsoever. He further submits that in view of the fact that her statement under section 161, Cr.P.C. was recorded on 3‑4‑1987, which was admittedly after her statement under section 164, Cr. P. C . , dated 31‑3‑1987, the case of the petitioners requires further enquiry. In the same category falls the averments made in W.P. No. 838/87 filed by Mst. Mumtaz Mai daughter of Mehnga disposed of by a learned Single Judge of the Lahore High Court, Lahore on 23‑2‑1987 and the contents of her application for bail before arrest in the Court of Session, dated 18‑3‑1981, according to the learned counsel. With regard to petitioner No. 1 he has reiterated his stand that being 80 years of age and being the father of other petitioners, he has been dragged in the case so that nobody is left in the family to prosecute the matter in their behalf.
3. Learned counsel for the State has opposed the application for bail and has contended that Mst. Mumtaz `tai is a minor and, therefore, her statements allegedly recorded under section 164, Cr.P.C. cannot be considered to have the effect of relieving the petitioners of the responsibility for the commission of the offences with which they are charged. Learned counsel for the complainant has adopted the arguments of the learned counsel for the State and further submitted that in the event of any dispute between the birth certificate and the medical certificate as also the statement of the complainant it is the normal practice that birth certificate is to be given precedence while determining the age of the abductee as held in Nazir Ahmed v. Muhammad Fiaz P L D 1984 Lah. 149.
4. I have carefully considered the facts of this case and find that even the question with regard to the age of Mist. Mumtaz Mai is not free from doubt. She was described to be of 14 years of age in the earlier F.I.R. but described as 13 years of age in the present case by the first informant, her father. Mst. Mumtaz Mai was examined for her age twice and was described to be of 15/16 years in certificate dated 26‑6‑1986 and of 17 years in certificate dated 2‑3‑1987. She described herself as 20 years of age while filing W.P. N0. 838/87, 17 years in her statement under section 164, Cr.P.C. before the M.I.C. Bahawalpur on 31‑3‑1987 and 20 years in the Nikahnama, dated 11‑2‑1987. I do not find any reason to accept the contention of the first informant that she was born on 16‑6‑1975, according to the birth certificate produced in the present proceedings only. The medical certificate abovementioned described Mst. Mumtaz Mai to be either 16 years or, 17 years of age and her age in her statement under section 164, Cr..C. is also given as 17 years. Mst. Mumtaz Mai described herself as 20 years of age in the W.P. No. 838/87 and also of the same age in her Nikahnama, dated 11‑2‑1987. As held in Mumtaz v. The State 1984 P Cr. L J 1316 and Nazir Ahmed and others v. The State P L D 1982 FSC 252, if Mst. Mumtaz Mai is not be treated as minor in this case, 'the benefit of doubt is to be given to the accused even at this stage. Similarly, Mst. Mumtaz Mai completely exonerated the petitioners in the statement under section 164, Cr.P.C. and, therefore, the case of the petitioners prima facie requires further enquiry. Reliance in this behalf may be placed on Muhammad Yasin and another v. The State 1986 P Cr. L J 883. It is not denied that the trial of the case has not yet commenced. Even according to that view of the matter, further incarceration of the petitioners in jail will run counter to the presumption of the innocence. The petitioners, are accordingly allowed bail each in the sum of Rs.5,000 with two sureties each in like amount to the satisfaction of the A . C . /Duty Magistrate Hasilpur. This petition is disposed of.
S.A./G‑116/L Bail granted.