' Petitioners Fakhar Hussain alias Fakhru Shah and Sayed Muhammad Shah through the instant petition have sought for post-arrest bail in Case F.I.R. No,5 dated 6-1-2004 under sections 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 registered with Police Station 18-Hazari, District Jhang.
2. Briefly the prosecution case as per F.I.R. Is that on 28-12-2003, at about noon time Fakhar Hussain alias Fakhru Shah, Sayed Muhammad Shah and an unknown person have enticed away Mst.
Noureen Bibi, the wife of the complainant for Zina.
3. It has been argued on behalf of the petitioners that they have falsely been roped in; that in fact the wife of the complainant of her own accord had left his house and she filed a suit for dissolution of marriage against him; that neither anybody has enticed her away nor done anything else with her; that in the police investigation, it has been found that she in fact had illicit relation with petition No,2 and so herself also has been found as an accused in the instant case; that there is no evidence of Zina against any of them except that of her own statement before the police; that they are behind the bars; and that they are previous non-convicts.
4. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that both the petitioners are named in the F.I.R.; that they along with another person have enticed away the wife of the complainant and then have committed Zina-bil-Jabr with her; that they earlier have withdrawn their application and so the instant application is not maintainable as they have not raised any new ground in the same and in support of such submission reliance has been placed upon the case of Mst. Jannat Bibi v.
Muhammad Bashir and another 1998 PCr.LJ 152 Lahore; and that the affidavit of the complainant cannot be considered at such stage and in support of the same has placed reliance upon the case of Allah Ditta and another v. The State 1985 PCr.LJ 24 Lahore.
5. I have carefully considered the submissions made by both the sides with the help of the available record.
6. The allegation against the petitioners as contained in the F.I.R. Is that they along with another person have enticed away the wife of the complainant for Zina.
7. It has been found from the copy of the report under section 173, Cr.P.C. In the case annexed to the petition that petitioner No,1 Fakhar Hussain alias Fakhru Shah has been found innocent in the investigation. It has also been found from the same that the wife of the complainant had of her own accord eloped with petitioner No,2 Saved Muhammad Shah. She, so herself has been considered as an accused in the case.
8. There is also with the petition the attested copy of the affidavit of complainant Wajid Ali Shah. He in the same has negated the version as contained in the F.I.R.
9. Admittedly, besides the statement of the wife of the complainant before the police, there is no other evidence on the police record against the petitioners of Zina-bil-Jabr with her. She while as said above has herself been found as an accused in the case being consenting party to the affair.
The question of evidentiary value of her such statement is open to serious consideration.
10. These facts certainly call of further inquiry into their guilt. The case against them, therefore, is covered within the purview of subsection (2) of section 497, Cr.P.C.
11. They are behind the bars and stated to be previous non-convicts.
12. As regards the contention that the instant application is not maintainable, the same is without force as their earlier application (Crl. Miscellaneous No,4868-B of 2004) was dismissed as not pressed straightaway. The fact remains that nothing was urged from their side in the same. So, the case of Mst. Jannat Bibi v. Muhammad Bashir Lahore is not aptly applicable to the petitioner's case.
Even otherwise, in view of the case of All Hassan v. The State 2001 SCM R 1047, the instant application is maintainable.
13. As regards the contention that affidavit of the complainant cannot be given effect to, the same is without force. As the complainant in his affidavit annexed to the petition has deposed that the case is false. There seems no reason to not to give effect to the same, particularly, when he has not resiled from the same.
14. In these circumstances, I find them entitled to bail. The petition, therefore, is accepted and they are admitted to bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.