DILDAR SHAH vs THE STATE

ORDER

' The learned Special Judge, Anti-Terrorism Court has not disposed of the application for sending the challan to his Court. Similarly, the learned Additional Sessions Judge to whom the challan has been submitted in this case has not sent the case to the Special Judge, Anti-Terrorism Court, hence, at present, the case is with the learned Additional Sessions Judge and without going into this controversy any further as the matter is of urgent nature relating to the bail application, it is heard by me as a single Bench. Let the arguments be started by the learned counsel for the petitioner. The learned counsel for the petitioner seeks post-arrest bail of the petitioner who is involved in a case F.I.R. No,204 of 1998, dated 19-6-1998, registered at Police Station Mangtana Wala, Tehsil Nankana, District Sheikhupura for an Offence of Zina (Enforcement of Hudood)

Ordinance, 1979 read with sections 420, 468 and 471, P.P.C. On the allegations of complainant Farooq Ahmad that he alongwith his parents, sister and brothers had gone to Lahore and had given his personal house on rent to Hussain son of Chan caste Syed. The house remained on rent for about three years. About 2-1/2 (sic) before he got the house vacated while Hussain remained as a tenant in the same Mohallah. Due to acquaintance the said Hussain became on visiting terms with the complainant but when he doubted his conduct, forbade him to visit his house. On 5-6- 1998 the complainant went for labour early in the morning and came back in the evening when his parents informed him that at about 10:30 O'Clock Abbas son of Malla caste Chaddhar a co-villager who is a fast friend of Hussain had come and went away after sometime. Thereafter, passing of few minutes Mst. Zubaida aged 15/16 years the sister of the complainant went out of the house and did not come back till the time of lodging of the F.I.R. The complainant searched for her in the village and came to know that Muhammad Mansha son of Inayat caste Muslim Sheikh, Shaukat Ali son of Allah Ditta caste Khokhar co-villagers met him who informed that Mst. Zubaida and Hussain son of Chan caste Syed and Abbas son of Malla co-villagers were seen waiting for a bus at the bus stop Narri Warihan enroute to Bhai Pheru. The complainant alongwith respectables of the locality contacted the relatives and parents of them who promised to return of Mst. Zubaida Bibi but he was kept on lame excuse and ultimately flatly refused saying that whatever he can do he may do and they will not return Mst. Zubaida Bibi and that Hussain and Abbas had enticed away and abducted Mst, Zubaida and that he is a complainant and prays for legal action.

3. Earlier the bail application was moved before the learned Additional Sessions Judge, Sheikhupura, which was dismissed for the reasons that the bail was rejected by the Honourable Lahore high Court vide order, dated 15-8-1998 on merit and even by the learned Additional Sessions Judge himself on 23-11-1999 and that there was no ground rather no proprietary to consider this the second said bail application.

4. The bail is now pressed on the grounds that the case is false, based on mala tide, grudge and grouse and that the petitioner's brother has duly contracted a valid marriage on 1-6-1998 in presence of which no offence of abduction or Zina was made out at all and that the petitioner is not named in the F.I.R. And the involvement is mala fide and that the co-accused who is the Nikah Registrar, has been allowed bail and that the petitioner is law abiding person and is not involved in any other case previously. The learned counsel for the petitioner submitted that the bail of the co- accused has been dismissed by the High Court and that the case of the petitioner is distinguishable from his case on the grounds that the petitioner is not even the marginal witness of the Nikah Nama while he was. Secondly, the petitioner is not named in the F.I.R. While Abbas was named in the F.I.R.

5. On the other hand, the learned counsel for the complainant frankly conceded that the name of the petitioner is not in the F.I.R. Nor there is signature of the petitioner on the Nikah Nama. He further submitted that the name of the petitioner came to the knowledge of the police when statement of the abductee was recorded under section 161, Cr.P.C. In which she stated that Dildar and others had committed Zina-bil-Jabr with her and that the case was hit by the prohibitory clause of section 497, Cr.P.C. Having fallen under section 10(4) of the Offence of Zina (Enforcement of Hudood)

Ordinance, 1979 providing death penalty.

6. 1, have given due consideration to the arguments on both sides and perused the record brought by Mr. Mubarik Ali A.S.-I.

7. The tentative assessm ent shows that admittedly the petitioner is not named in the F.I.R. His signature or thumb-impression are also not present on the alleged forged Nikah Nama. There is a delay of fourteen days in lodging the F.I.R. The question of Zina with the abductee by a brother of petitioner with whom there is also a plea of Nikah and previous enmity having all come during investigation, the truth and falsehood of which is to be seen at the trial, make this case that of further probe as such to keep the petitioner in jail without trial would mean conviction before trial.

In this view of the matter, bail is granted subject to furnishing bail bond in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the trial Court.