' Shahbaz Farooq petitioner alongwith Amjad Ali, Kashif, Muhammad Imran and Nazir Ahmad has been arrayed as an accused in Crime Report No,138, dated 8-5-2002, under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 read with section 452/34, P.P.C., registered with Police Station Dinga, District Gujrat, at the behest of one Lal Khan. Later on, police added section 10(4) of Ordinance No,VII of 1979 in the list of offences for the reason that Amjad Ali and Kashif had actually committed Zina-bil-Jabr with Mst. Naureen Bibi daughter-in-law of the complainant. Shahbaz Farooq, Muhammad Imran and Nazir Ahmad were also carrying fire-arms with them like principal offenders in the case. Shahbaz Farooq and Muhammad Imran alongwith Amjad Ali and Kashif had irrupted into house of the complainant on the night between 7/8-5-2002.
Shahbaz Farooq and Muhammad Imran did not enter the room where their co-accused subjected Mst. Naureen Bibi to sexual intercourse forcibly. They simply stood in the courtyard while aiming their weapons at the P.Ws.
2. Earlier two applications bearing Criminal Miscellaneous No,5605/B of 2002 and Criminal Miscellaneous No,948/B of 2002 were dismissed as withdrawn on 23-10-2002 and 4-3-2003 respectively on the statement of the learned counsel.
3. Learned counsel appearing on behalf of Shahbaz Farooq petitioner sternously argues that allegation of Zina-bil-Jabr has not been levelled by the prosecutrix against the petitioner and for that reason charge under section 10(4) (ibid) is not sustainable in the eye of law; that Muhammad Imran co-accused is real nephew of Nazir Ahmad accused, so it is not believable that uncle and nephew go together at a place while carrying arms where such heinous crime is likely to be committed; that the case is false and he has been wrongly involved therein.
4. Conversely, learned counsel for the State submits that the petitioner is named in the F.I.R. And a specific role was played by him during the occurrence. Adds that so far, no evidence has been recorded. He opposes grant of bail, tooth and nail.
5. I have with full care and devotion heard and considered respective arguments of learned counsel for both the sides.
6. Admittedly, there is no allegation of commission of Zina against the petitioner. He simply entered into compound of the house where in a room sexual assault on Mst. Naureen Bibi was committed by Amjad Ali A and Kashif. According to the provisions of section 10(4) (ibid) where Zina-bil-Jabr liable to Ta'zir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punishable with death.
7. The petitioner is behind the bars of the last more than a year. Challan has already been submitted and conclusion of trial is likely to consume a sufficient long time. Whether or not petitioner was present at held guilty by dint of application of section 34, P.P.C. Are the the spot as alleged by the complainant and witnesses and could be pivotal questions to be determined by the trial Court after recording of some material evidence in the case. In these circumstances, further probe into allegation is necessitated keeping in view broad features of the case.
8. Accordingly by accepting this petition, I admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the trial Court.