AKBAR ALI vs THE STATE

ORDER

' Through this petition Akbar All petitioner has sought post-arrest bail in case F.I.R. No,200 registered at Police Station Faisal Town, Lahore on 28-6-2002 for offences under section 16 of :he Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 380, P.P.C. During the investigation section 16 was deleted and was substituted by sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. In this case had been lodged with a delay of ten days. The alleged illicit liaison between the petitioner and the alleged enticee/abductee has been mentioned by the complainant in the F.I.R. Itself and, thus, the subsequent allegation regarding forcible abduction of the said lady prima facie appears to be inconsistent with the above mentioned factum recorded in the F.I.R. Even otherwise it had been mentioned in the F.I.R. That while leaving the complainant's house the lady in question had taken some jewellery and cash with her and this assertion also appears to be inconsistent with the subsequent allegation regarding her forcible abduction. As regards the alleged Zina-bil-Jabr committed with the alleged abductee it has been noticed that the medico-legal certificate in respect of the said lady does not disclose any mark of violence on any part of her body. A positive report of the Chemical Examiner regarding the said lady's vaginal swa bs does not appear to be of much avail to the prosecution as the said lady is admittedly a married lady living with her husband. It is not disputed that no semen grouping or matching has been undertaken in this case so far. The alleged abductee had not been recovered from the petitioner's custody and she had appeared before the Investigating Officer on her own. No stolen article was recovered from the petitioner's possession during the investigation of this case. Mere travelling of a person with a lady in a rickshaw in a crowded place does not by itself give rise to any inference regarding such lady's enticement or abduction. The allegations regarding forcible abduction of and commission of Zina-bil-Jabar with the lady in question are levelled only by the lady herself as the said offences had not been witnessed by anybody else. In this context it may not be out of place to mention here that according to her statement recorded under section 164, Cr.P.C.

On 3-7-2002 the alleged abductee had secured her release privately on 29-6-2002 but she had made the said statement before the, Magistrate after a delay of four days. According to the said statement the alleged abductee had been travelling with the petitioner and his co-accused and had stayed with them at crowded places without raising any protest whatsoever and had attracted attention of none. Such a conduct on the part of the said lady prima facie casts a thick cloud of doubt over the veracity of her statement. The challan in this case has already been submitted after completion of investigation and, thus, continued custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage.

3. For what has been discussed above the case against the petitioner calls or further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.

4. Before parting with this order it is clarified that any observation made in the present order shall not prejudice the learned trial Court. #EndJudgment