' This order will dispose of two bail applications bearing Criminal Miscellaneous No.5346-B of 2003 titled Saifullah Sindhu v. The State and Criminal Miscellaneous No.5453-B of 2003 as both have arisen out of one and the same F.I.R.
2. Both the petitioners, Saifullah Sindhu son of Ch. Muhammad Abdullah and Safdar Hussaion son of Khushi Muhammad seek their post-arrest bail in case bearing F.I.R. No.257 of 2002 dated 26-11- 2002 registered against them under section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979, with Police Station Ahmad Nagar, District Gujranwala, on the application of Mst. Amna Bibi daughter of Ghulam Rasool aged 25/26 years section 15 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sections 420, 468, 471, P.P.C. Were added on 28- 11-2002.
3. The story as unfolded by the complainant in the F.I.R. Was that she was living at Dharowal with her mother and her sister as her father was employed in Saudi Arabia. She was married in 1994 but the said marriage ended in divorce because one Safdar Hussain (petitioner) deceived her mother into marrying his brother Khizar Hayat with the complainant by concealing the identity of Khizar Hayat and presenting him as Saifullah Sindhu resident of Mianwali Bangla; the said Safdar Hussain along with his cronies namely Saifullah Sindhu son of Abdullah, Javaid Iqbal Nasir alias Zubair alias Badshah, Muhammad Hussain and Iqbal Warraich kept on deceiving the complainant and her mother; they in a deceitful manner deprived the complainant's mother of cash gold ornaments and also got signed certain stamp papers; they also (sic) Khizar Hayat at Gujranwala; after the Nikah, she was kept at Gujranwala where Khizar who was a fake husband of the complainant cohabited with her whereafter she was sent to her village; thereafter he came to the complainant's house off and on; finally on one night the said Khizar along with his friends Saifullah and Zubair alias Badshah and Iqbal Warraich came to the complainant's house; Khizar Hayat committed sexual intercourse with the complainant and after that he forced her to commit Zina at pistol point with the rest of his three friends. The complainant went on to allege in the F.I.R. That she narrated that incident to the present member of the union council namely Muhammad Zubair son of Lal and one Hussain Shah son of Maqbool Hussain Shah and they advised her to go to the police station.
Accordingly the instant case was registered. Hence these petitions.
3. The bail plea of Saifullah petitioner was dismissed by the learned Additional Sessions Judge, Wazirabad vide his order dated 23-7-2003 whereas the bail application of Safdar Hussain was dismissed by the learned Addl. Sessions Judge, Wazirabad, vide order dated 12-5-2003.
4. Mr. S.M. Nazim, Advocate, learned counsel for Saifullah Sindhu petitioner, in support of his plea for bail has argued that the story as arrated in the F.I.R. Is highly improbable in that the occurrence could not have taken place in the manner and in the fashion as stated in the F.I.R.; that the petitioner Saifullah Sindhu was found innocent to the extent of the offence under sections 10, 15 of the Hudood Ordinance ibid and that the Investigating Officer came to the conclusion that he was guilty under section 420, P.P.C. That the investigation was verified by D.S.P. And legal opinion tendered by D.S.P. (Legal) also revealed that the petitioner was not involved in the offences under the Hudood Ordinance; that the complainant is in the habit of making such like allegation in which connection the learned counsel referred to F.I.R. Bearing No.111 of 2000 registered with Police Station Ahmad Nagar at the instance of the complainant wherein she had alleged that one Shamshair Masih son of Mushtaq Masih had attempted to commit zina with her. The learned counsel referred to a case titled Muhammad Ismaeel v. Muhammad Rafique and another reported in PLD 1989 SC 585 in support of his arguments to the effect that once the petitioner in a criminal case is found entitled to the concession of bail the said concession cannot be withheld on the ground either that the challan has been submitted or (sic) the said case that when the Court finds that two essential conditions contained in section 497(2), Cr.P.C. Are satisfied the accused shall become entitled as of right to the grant of bail.
5. Mr. Zia Ullah Ranjha, Advocate, who appeared on behalf of Safdar Hussain petitioner in Criminal Miscellaneous No.5453-B of 2003 adopted the argument advanced by Mr. S.M. Nazim, Advocate.
However he added that Khizar co-accused was already a married person and as such there was no occasion for the petitioner to have married his brother to the complainant. He further submitted that a 4 years old son of Khizar co-accused had been killed in a road accident only 17 days before the alleged occurrence and as such it could not be imagined that a grief stricken man like him would commit such a heinous act only seventeen days after the death of his son while he was still in mourning. He places reliance on a case titled Sardar Ali v. The State 1986 PCr.LJ 2292 to canvass that where the allegation against an accused is only for assisting or abetting an offence of Zina he becomes entitled to the concession of bail.
6. On the other hand Mr. Allah Bakhsh Gondal, Advocate learned counsel for the complainant as also Mr. Suhail Tariq and Mr. Aslam Khokhar, Advocates, appearing for the State have vehemently opposed the grant of bail to the petitioners. They have argued that no malice or enmity whatsoever, has been pointed out or it cannot be said that the complainant was motivated by any malice that accused persons named in the F.I.R. Had acted on a well-thought out plan and had not only deprived the helpless ladies of considerable amount of money but also played with their honour, since they knew that the father of the complainant was away to Saudi Arabia and there was no male member of the family to look after them; that two of the co-accused mentioned in the F.I.R. Namely Iqbal and Javaid alias Badshah are still fugitives from law and have been declared P.Os.; that Saifullah and Khizar were arrested only on 21-5-2003 and they also remained fugitives from law for a considerable period; that recovery of some cash has been effected from Safdar Hussain and Saifullah petitioners; that the alleged delay in the F.I.R. Stands fully explained in the F.I.R. Itself and the statements recorded under section 161 of Cr.P.C. Of the witnesses namely Mst.
Zubaida Ehsan and Chaudhry Manzoor Ahmad Nikah Registrar fully implicate the petitioners and show that the complainant was forced into contracting Nikah with Khizar; that section 109, P.P.C. Is fully applicable in this case and the petitioner cannot escape his liability on this count alone.
Regarding applicability of section 109 P.P.C. He has relied on an elaborate judgment titled, Mst Hanif Bibi and another v. Zulfiqar and another reported in 2001 PCr.LJ 123 Lahore, delivered by his Lordship Mr. Justice Iftikhar Hussain Chaudhry, the present Chief Justice of the Lahore High Court.
7. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties.
8. There is no denying the fact that F.I.R. Which runs in minute details contains serious allegations against the petitioners. The delay in lodging the F.I.R. Prima facie stands explained in the F.I.R. I have also examined the police record and find that the Zimni recorded by Manzoor Ahmad Inspector whereby he held that the alleged gang rape did not appear to have taken place, is also not supported by any tangible material. At any rate ipsi dixit of the police is not binding on this Court.
The arguments advanced by both the learned counsel for the petitioners required a detailed and deeper appreciation of evidence gathered so far by the investigating agency. Obviously such an exercise cannot be undertaken at bail stage as this Court has to keep itself within the realm of tentative assessm ent of evidence.
9. In view of facts and circumstances of the case and particularly the evidence which so far exists on the file there is prima facie sufficient material available on the file to connect the petitioners with the crime covered by the prohibitory clause as contained in section 497, Cr.P.C. Both the petitions have no merit and are accordingly dismissed.