1. ' By this criminal bail applicant Roshan Lal son of Jagoo Mal has sought bail from this Court in offence under sections 10, 11, 16 Offence of Zina (Enforcement of Hudood) Ordinance and section 380 P.P.C. And section 14 Offences Against Property (Enforcement of Hudood) Ordinance 1979 in Crime No.242 of 2004 P.S. Ghotki. Applicant has approached the Court of Session Judge Ghotki for grant of bail who vide his order dated 24-12-2004 dismissed the same.
2. ' The brief facts of the matter are that complainant Gobind Ram S/o Bhai Hond Ram has lodged a complaint on 25-11-2004 at 2-30 hours at P.S Ghotki alleging therein that he resides in Ghotki city and his marriage was solemnized with Mst. Patoolan daughter of Heera Nand on 21-12-2001. It is alleged by the complainant that he used to take care of the Nandhi Darbar temple for his elders which temple is attached to his house and Hindus used to come and visit the temple for worship purpose. It is further alleged that the applicant also used to visit the temple at day and, evening time for worship purpose. On 16-5-2004 at sunset time the complainant and his mother found that the complainant's wife was not available in the house. Complainant made enquiry from one Passho Ram who disclosed that he has seen the applicant taking his wife with a bag towards the road on which the complainant raised cries to which his brother Aneel Kumar, Sunder Lal and Pandat come from the temple on which the complainant; Anil Kumar, Passho Ram and Sunderdas went towards the road where -they saw the applicant taking away his wife in a Alto car with intention to commit Zina with her. It is alleged that complainant chased the car but the car vanished from the sight. Thereafter the complainant went back to home and found that certain golden ornaments and cash Rs.40,000 and colthes were missing. The complainant and his brother went to the Mukhi of the city namely Kakaram alias Krishandas who called the relatives Of Roshan Lal for the return of the woman. After passage of eight days the woman was handed over to Mukhi Sahib and it is alleged that the accused requested for time for return of the articles in the meanwhile it is alleged that Mukhi Sahib handed over Mst. Patoolan to her father namely Heera Nand in Sukkur till the Faisla is made by the Panchiat. But as no Faisla is made and the articles were not returned, the complainant lodged and instant complaint.
3. ' It is contended by Mr. Imdad Ali A wan counsel appearing for the applicant that there is a delay of six and half months in lodging of complaint. He has further stated that in the complaint itself the complaint has alleged 'that his wife was recovered after eight days of the alleged incident but still no complaint was lodged by him. He has further contended that although Patoolan has been cited as one of the accused but till date, no statement of her has been recorded and the Sessions Judge Ghotki has granted bail to the said Mst. Patoolan. He has further contended that Mst. Patoolan as well as her father namely Heero Mal alias Heera Nand have both filed their affidavits separately denying the incident alleged in the complaint. In support of his submission he has relied upon 2004 SCM R 425, 2004 PCr.LJ 1179, 2004 PCr.LJ 1283 and 2004 YLR 1151.
4. ' Mr. S. Mushtaque Hussain Shah learned counsel appearing for the complainant has in the first instance clarified that the complaint was not lodged by complainant merely for return of articles but also for enticing the complainant's wife for commission of Zina by the applicant. He further contended that Mst. Patoolan being one of the co-accused, her affidavit cannot be relied upon. He further stated that Patoolan has been granted bail by the Court in view of the amendment made in subsection(i) of Section 497 Cr.P.0 as a matter of right and not on merits. He further contended that merely on the basis of dispute on the wall, the complainant will not make such a serious complaint involving his own wife and there was no dispute between the complainant and his wife. He further contended that the applicant himself in his application under section 491 Cr.P.C. Filed before the Sessions Judge Jacobabad has claimed that the marriage between him and Mst. Patoolan was solemnized on 22-3-2003 at Jacobabad. He has also brought my attention to the ground No.3 of the bail application moved by the present applicant before the Sessions Court Ghotki in which he has claimed that marriage between him and Mst. Patoolan was solemnized on 22-3-2003 at Jacobabad. He referred to sections 6,9,10,11 and 15 of the Offence of Zina (Enforcement of Hudood)
5. Ordinance 1979 and stated that there is a presumption of Zina by the applicant with Mst. Patoolan.
6. In support of his submissions he referred to 1997 SCM R 278; 2002 SD 89, PLD 1991 SC 412, 2002 SCM R 1329, 1997 PCr.LJ 115 and 1997 M LD 1345.
7. ' Mr. Abdul Ghafoor Pirzada learned counsel appearing for the State has not made any submission on the merits of the bail application but has contended that in view of the affidavits filed by Mst.
8. Patoolan and her father in this Court, the same may be left to be considered by the Court of first instance and the bail application be remanded.
9. ' In rebuttal Mr. Imdad Ali Awan submits that it is wrong to say that Mst. Patoolan has been granted bail on the basis of the amendment made in subsection (i) of Section 497 Cr.P.C. And contended that bail to her has been granted as a matter of right.
10. 'I have considered the arguments of the learned counsel and have gone through the record.
11. Admittedly there is delay of about six and half months in lodging of the complaint and although Mst. Patoolan as per complainant's own showing was, recovered and handed over to her father after eight days of alleged incident. The explanation offered for the delay is that the complainant has been pressing for Faisla but the applicant has been avoiding the same. The fact that Mst.
12. Patoolan has been granted interim pre-arrest bail which was later on confirmed by the Sessions Judge Ghotki is also not disputed. Mst. Patoolan in her affidavit has admitted the complainant to be her husband but has altogether denied that she was at all enticed by the applicant or that he committed Zina with her. She has stated that because of her maltreatment at the hands of the complainant she moved to the house of her father and that she is living with her parent for the last 7-8 months of her own free-will. The father of Mst. Patoolan in his affidavit has also admitted that Mst. Patoolan was married to the complainant about three years back but as the relation between the spouse were strained and not cordial therefore the complainant himself has driven her away and she is residing with him, at Jacobabad. He has denied that his daughter was abducted or enticed away by the applicant or any Zina was committed with her by the applicant. Both Mst.
13. Patoolan as well as her father have alleged that the complaint is false and has been malafidely lodged because of a dispute which the complainant has with the nephew of the applicant about demolition of the wall. Mr. Awan in this respect has referred to N.0 report lodged by the nephew of applicant which is not disputed by the counsel appearing for the complainant. It may be noted that while the complainant counsel has vehemently argued that the affidavit of Mst. Patoolan being co-accused cannot be relied upon but at the same time no objection to the affidavit of the father of Mst. Patoolan was at all raised by the learned counsel for the complainant. In the first cited case i.e. State v. Khuda Dad and others 2004 SCM R 425, Honourable Supreme Court has observed that simply seeing the abductee in the company of the respondent would not attract the ingredients of Section 11 of the Hudood Ordinance and after examining the provisions of section 11 of the said Ordinance noted that to be more clear the ingredients of word abduction as defined in section 362 are also to be examined in the light of the case of the prosecution which in the opinion of the Court was found to be not attracted as it was nobody's case that she was abducted on show of force or in deceitful manner. In the second cited case which is a judgment of my learned senior brother Ghulam Rabbani-J of this Court namely Farhan Shah v. The State 2004 PCr.LJ 1971, relying upon the statement of the abductee that she has gone to Karachi to see her maternal aunt she was neither abducted nor she was subjected to sexual inter course by the alleged accused, the case was found to be of further enquiry and the accused was granted bail. In the IIIrd case which is a judgment of my learned senior brother Wahid Bux Brohi-J of this Court, namely Makoro and another v. The State 2004 PCr.LJ 1283, the Court has observed as follows:-- "5. The most important evidence in this case is of Mst. Sardaran but she has been joined as an accused in this case. However, an affidavit attributed to her has been filed in this Court, which has gone uncontroverted. The case instantly, is dependent on evidence of Khamiso the complainant and his brother Jatoi, whose names transpire as the accused persons in the F.I.R. 5 of 1999 of Police Station Belo, Mirpur, District Ghotki. All these circumstances would require proof at the trial, but for the time being at least in the backdrop of the aforesaid circumstances, a case of further inquiry is made out."
14. ' As against the above, the case-law relied upon the learned counsel for the complainant namely the case of Muhammed Afzal and another v. The State 1997 SCM R 278, the facts and circumstances of the case were altogether different in as such as in the said case the alleged abductees were also murdered by their own relatives which made the case of severe heinous consequences. The second case of 2002 SCM R 442 is altogether distinguishable. Similarly in the case of Mst. Nasreen v.
15. Fayyaz Khan PLD 1991 SC 412, the Hon'ble Court found that in Zina-bil-Jabr, sole testimony of victim is enough for conviction in case it inspires confidence. In the fourth case Rasheed v. The State 2002 SCM R 1329, the Court found that there was direct allegation of commission of Zina levelled against the accused therefore he was not granted concession of bail. The remaining three cases are also not of much help to the learned counsel for the complainant. In the present case there is no direct allegation by the complainant that any Zina has been committed by the applicant with Mst.
16. Patoolan. Even if no weight is given to the affidavit of Mst. Patoolan, affidavit of her father has not been attacked by the counsel for the complainant and he having denied the allegation of abduction and commission of Zina with his daughter by the applicant therefore in my view, for tentative purposes it is a safe piece of evidence which could be relied upon for making the case of present applicant of further enquiry. Furthermore there is no direct allegation of commission of Zina by the applicant with Mst. Patoolan nor any statement in this respect or medical checkup has at all been conducted. There is no valid explanation of delay in lodging complaint of almost six and half months. Undisputedly there is a N.C. Lodged by the nephew of the applicant against the complainant in respect of demolition of wall. Applicant's allegation of his marriage with Mst.
17. Patoolan is denied by her father. Even otherwise it is yet to be found as to whether there was any such marriage which is stated to have taken place on 22-3-2003 which is much prior to the date of incident.
18. All the above facts cumulatively make the case of further enquiry. After hearing the bail application, by a short order passed today the bail application was allowed and the applicant was allowed to be released on bail on furnishing surety in the sum of Rs.2,00,000 & PR bond in the like amount to the satisfaction of the trial Court. Above are the reasons of the said short order.