ORDER MUHAMMAD AHSAN BHOON, J. - Petitioner (Rana Imran Jameel son of Jameel Ahmad, Caste Rajput) seeks post-arrest bail in case F.I.R. No. 50/2008, dated 9.2.2008 offence under Sections 376/365-B and 511, P.P.C. Read with Article 11 of Prohibition (Enforcement of Hadd) Order, 1979 registered with Police Station, City Gojra. District Toba Tek Singh.
2. Briefly allegation against the petitioner and his co-accused is that they on fin point abducted Mst. Asma Shafique complainant and her friend Mst. Sana Naz. Thereafter, petitioner and his co- accused made an attempt to commit Zina with them. During the course of investigation there was no allegation of Zina, so the offence under Section 365-B, P.P.C. Was deleted vide case diary No. 11, dated 19.2.2008.
3. After hearing the learned counsel for the parties and going through case diary No. 11, dated 19.2.2008, wherein I.O. Muhammad Hussain, S.. Has concluded that during the course of investigation he reached .At the conclusion that both the alleged victims were not abducted on gun point rather they both accompanied the petitioner with their free consent on a motorcycle and they, kept on roaming around. Hence the co-accused Amjad, was declared innocent, whereas petitioner was chicaned under Sections 376, 511, P.P.C. With Article 11 of Prohibition (Enforcement of Hudd) Order, 1979. On going through the whole file there is no allegation of rape or zina against any accused. It is astonishing as to how the provisions of Section 376 has been attracted, when same is not at all applicable to the facts and circumstances of the present ,case and evidence available on record and similar is the situation with regard to Section 511, P.P.C. On perusal of the whole file and allegation levelled against the petitioner and his co accused, prima facie, it seems that case falls within purview " of Section 496-A, P.P.C. For which the punishment provided is seven years which does not fall within - prohibition contained in sub-section (1) of Section 497, Cr.P.C. Section 49'6-A, P.P.C; is reproduced below:- "496-A: Enticing or. Taking away or detaining with criminal intent a woman - Whether takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains v with that intent any woman; shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine."
A very important aspect has been noted by me that a man" and woman not married to each other, if they have sexual intercourse with one and other are said to commit formication which is an offence punishable under Section 496-B, P.P.C. And maximum punishment of said offence is five years alongwith fine of Rs. 10,000/-. Section 49*B reads as follows:- "496-B. Fornication - (1) A man and a woman not married to each other are said to commit fornication if they wilfully have sexual intercourse with one another.
(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees."
The above-quoted provision would show that the punishment of validity sexual intercourse is lower than for offence wherein even on illicit intercourse has been performed, it does not appeal to reason that a man and woman, who are majorypuberty, sui juris have wilfully gone to some place and they have done nothing and yet they are liable for prosecution. During the course of investigation no weapon of offence as alleged by the complainant was recovered from the petitioner rather only motorcycle was taken into possession by the I.O.,. Which was used for ride by only petitioner as well as by both alleged abductees. Petitioner is behind the bar since his arrest and no more required for the purpose of investigation.
4. For what has been discussed above, this petition is allowed and petitioner is granted post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 1.0, 000/- (Rupees One Lac only) with the surety in the like amount to the satisfaction of the learned Trial Court.