' HASNAT AHMAD KHAN, J.--- Through this petition Ghulam Abbas son of Talib Hussain and three others have sought post-arrest bail in case F.I.R. No,395 of 2006 dated 26-8-2006 registered at Police Station Saddar Kabirwala, District Khanewal in respect of offences under section 364, P.P.C.
And section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.
2. Shorn of unnecessary details the prosecution story as unfolded in the F.I.R. Registered at the instance of Muhammad Hussain complainant is that on the night between 25/26 August, 2006 at 1- 30 a.m. 12 accused, out of whom three were unknown wearing black shirts and brown pantaloons and armed with fire-arm weapons allegedly barged into the house of the complainant and started to rough up the complainant and his sons with fists and slaps. Thereafter said intruders, allegedly, abducted complainant's daughter, Ghazala Shaheen and wife Shamshad Mai, at gunpoint.
Motivating factor behind the occurrence, statedly, was that complainant's brother namely Wahid Bakhsh had abducted wife of Muhammad Nawaz, one of the accused named in the F.I.R. It was further stated that neither Wahid Bakhsh nor Mst. Kalsoom, abductee had been recovered till then.
Hence the F.I.R. Was registered.
3. During the course of investigation Ghazala Shaheen as well as Shamshad Mai the alleged abductees were recovered from the custody of Nazra, co-accused while they were travelling in a car. After recovery the statements of both the abductees were recorded under section 164, Cr.P.C.
Later on supplementary statement under section 161, Cr.P.C. Made by Ghazala Shaheen, abductee was recorded by the investigator. In said statement Ghazala Shaheen levelled allegation of Zina- bil-Jabr only against Nazra co-accused and an unknown person/accused. After getting them medically examined the investigator added the offence under section 10(4) of the Zina (Enforcement of Hudood) Ordinance VII of 1979. The petitioners were arrested in this case on 19-10- 2006. After refusal of application for post-arrest bail by the learned Additional Sessions judge, Kabirwala the petitioners have sought post-arrest bail from this Court.
4. Learned counsel for the petitioners has contended that the petitioners have been involved in this case malafidely due to the reason that the .Petitioners happen to be close relatives of the main accused namely Nawaz whose wife had illegally been abducted by the brother of the complainant; that the prosecution has thrown the net very wide by implicating as many as 14 persons in this case; that during the investigation no incriminating article was recovered at the instance of the petitioners who arc suffering incarceration since 19-10-2006; that the allegations levelled against the petitioners need further inquiry into their guilt and therefore, they are entitled to post-arrest bail.
5. While refuting the arguments advanced by the learned counsel for the petitioners learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has strenuously opposed the bail application on the ground that the petitioners are guilty of a horrendous and abominable offence which falls within the prohibitory clause of section 497, Cr.P.C. And therefore, they are not entitled to bail.
6. After hearing the arguments put forth by both the parties and going through the relevant record I have observed that while lodging the F.I.R. 11 out of 14 accused persons have been specifically named by the complainant. I have further noticed that it was a night time occurrence, which was not reported to the police with as much promptitude as the circumstances demanded. Admittedly there is delay of about 9 hours in lodging the F.I.R. And therefore, chance of deliberation, consultation and A throwing the net wide by the complainant cannot be ruled out, outrightly. I have further gathered that though there is allegation of reckless firing by the accused at the time of occurrence but according to the Deputy Prosecutor-General no crime-empty was recovered from the spot. Similarly the allegation of beating up of the prosecution witnesses remained uncorroborated, as admittedly the said P.Ws. Were not medically examined.
6-A. I have further concluded that after the recovery, the statements of both the abductees were recorded under section 164, Cr.P.C. And B while making their statements none of them named the petitioner as perpetrators of their abduction. According to both ,the abductees one Nazra, co- accused was named as one of their captors. Though according to abductees rest of accused were not known to them but the police did not arrange for holding test identification parade to saddle the liability of the petitioners. While making said statements before the Magistrate none of the abductees levelled the allegation of Zina against their abductors but afterward a. Supplementary statement of Ghazala Shaheen was recorded by the investigator under section 161, Cr.P.C. Wherein she submitted that during the captivity Nazra,-co-accused had raped her. It would not be out of place to state that the report of Chemical Examiner regarding the swabs of the victim was found in negative. Be that as it may allegation of rape has not been levelled against any of the petitioner, so much so the abductee at no stage nominated the petitioners as their captors. During the investigation the clothes allegedly used by the culprits to show them as men of uniform were recovered from Nazra, co-accused.. A gun was also recovered from him but admittedly no incriminating article was recovered from the possession of the petitioners. As mentioned earlier, there is no allegation of Zina against D the petitioners. All the facts narrated above show that the allegation levelled by the prosecution would be requiring further inquiry into the guilt of the petitioners, (under section 497(2), Cr.P.C.) who are suffering incarceration since 19-10-2006 and the trial is not likely to commence in the near future.
7. For what has been stated above, this application is accepted and the petitioners are allowed post-arrest bail subject to their furnishing bail E bonds in the sum of Rs.2,00,000 each with two sureties in the like amount to the satisfaction of the trial Court.