' HASNAT AHMAD KHAN, J.---Petitioners seek post-arrest bail in case F.I.R. No. 64, dated 26-3-2005 registered, at Police Station Qureshi, District Muzaffargarh, in respect of offences under sections 337-A(ii), 337-L(ii), 148, 149, P.P.C. And sections 10/11 of the Offence of Zina (Enforcement of Hadood)
Ordinance, 1979.
2. Briefly the prosecution story as unfolded in the F.I.R. Lodged at the instance of Abdul Majeed complainant is that on the night of 25-3-2005 at 10-00, p.m. He heard shrieks of his brother namely Abdul Hameed who was lying asleep in his shop. On hearing said shrieks, the complainant along with his father hurried towards said shop and witnessed Habib and Murid Hussain co-accused besides Ghulam Shabir and Ghulam Farid petitioners, armed with clubs/sotas, causing injuries to Abdul Hameed. On throwing of challenge by the complainant and his father, Ghulam Shabir petitioner allegedly sought help from co-accused who had hidden themselves in nearby place, upon which Zafar, Jandoda, Noor Muhammad (petitioner) along with two other persons also emerged at the scene and caused various injuries to the complainant and his father with their respective weapons.
3. After registration of said case, the complainant got a supplementary statement recorded wherein the allegation of abduction of his sister namely Mumtaz Mai was levelled against the petitioners and others. During the investigation said Mumtaz Mai was recovered and made a statement on 7-4-2003 before the police alleging therein that on the night of 25-3-2005 at 10-00 P.M. Zafar co-accused armed with gun, Habib Ahmad, Ghulam Shabir (petitioner), Murid Hussain, Ghulam Farid (petitioner), Jandoda and Noor Muhammad (petitioner) along with their accomplices forcibly abducted her after barging into her house, whereafter she was taken away to a "Dera" where 7 persons including three petitioners had raped her turn by turn. Whereafter she was allegedly taken away to Mauza Sohni by Zafar, Bashir and Amer Shehzad co-accused where she was detained in a hotel and was again raped by petitioners, Amer Shahzad and Bashir Ahmad turn by turn. According to her Zafar, Bashir Ahmad and Habib after leaving the said lady in the custody of Murid Hussain went away. She further stated that when she along with Murid Hussain co-accused was standing at a bus stop, both of them were apprehended.
4. In support of this petition learned counsel for the petitioners has contended that at the first blush the allegations levelled against the petitioners appear to be very serious but on minute scrutiny it would become crystal clear that the same are pack of lies; that in the F.I.R. No allegation of abduction of Mumtaz Mai was levelled by the complainant; that the allegation of commission of rape by seven accused persons is not believable; that Noor Muhammad petitioner is a person of fairly oldage; that Murid Hussain co-accused from whose possession the abductee was allegedly recovered has already been granted bail by a learned Additional Sessions Judge, Muzaffargarh vide order, dated 14-7-2005.
5. Conversely, the learned counsel for the State has opposed the bail application on the ground that the challan has already been submitted and trial is in progress.
6. Pertinent to mention that on receipt of notice the complainant has appeared in person and stated that he does not want to engage any counsel.
7. Confronted with the objection of start of trial, learned counsel for the petitioners has contended that the petitioners are behind the bars since April, 2005 and though after submission of the challan the charge was framed about two years ago yet the trial. Is lingering on, on one pretext or the other.
8. After hearing the arguments put forth by the parties, I have noticed that originally it was not the case of the complainant that his sister was abducted by the accused. Said allegation was levelled through a supplementary statement. According to the statement of the victim she was abducted by the accused mentioned in the F.I.R. On the date and time of occurrence which was given by the complainant for causing injuries to him and the other witness. The somersault taken by the complainant, prima facie, shows that the prosecution had not come with clean hands. I have further noticed that the alleged abductee had married Zafar Iqbal co-accused (P.O.) in lieu of an exchange marriage. A certified copy of a judgment passed by a Judge Family Court Muzaffargarh has been placed on record to show that Mumtaz Mai alleged abductee and Zafar Iqbal (P.O.) had filed suits for dissolution of marriage and restitution of conjugal rights respectively against each other. Said suits were decided by a learned Judge Family Court Muzaffargarh vide judgment and decree, dated 2-5-2005, whereby the suit filed by Zafar was dismissed while suit filed by Mumtaz Mai (abductee) was decreed. In said background the question as to whether Zafar Iqbal who allegedly had abducted his wife would allow the other persons to commit rape with her, would be requiring further inquiry. The main co-accused from whose possession the abductee was recovered has admittedly been allowed bail by the learned trial Court. Ghulam Farid and Ghulam Shabir petitioners are languishing in jail since 7-4-2005 while Noor Muhammad is suffering pre- trial punishment since 27-4-2005. Though the challan has been submitted but for certain unavoidable circumstances the trial has not yet been concluded.
9. As the case of the petitioners has become as that of further inquiry, the start of trial would not debar them from getting the bail. The petitioners are also entitled to bail following the rule of consistency as Murid Hussain whose case is at par with that of the petitioners has already been released on bail. Considering the said facts coupled with the fact that the petitioners are suffering pre-trial punishment since April, 2005 the application in hand is accepted and the petitioners are allowed concession of bail-after arrest subject to their furnishing bail bonds in the sum of Rs.1,00,000 (one lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.