1. ' IFTIKHAR HUSSAIN BUTT, J.--- This revision petition has been filed against an order of District Criminal Court Kotli dated 20-1-2012 whereby the bail petition of the accused-petitioner was dismissed.
2. ' The necessary facts forming the background of the instant revision petition are that Nageeb Khan, the complainant lodged an F.I.R on 26-11-2011 at 5-30 p.m. At. Police Station Khuiratta alleging therein that Kabeer accused-petitioner developed illicit relations with his sister Mst. Naveeda Kausar and on mid night of 24/25 November, 2011, the accused-petitioner along with other accused persons abducted his sister with an intention to commit Zina and took her. Away at some unknown place. The accused persons also took away Rs,80,000 cash along with five tolas ornaments. Later on Muhammad Bashir and Mobeen Akram told him that they saw accused-persons along with a woman while boarding in a car driven by an unknown driver from Kotla towards Khuiratta.
3. ' The F.I.R. Was delayed because he has been finding the whereabouts of his sister. Now the accused-petitioner is committing Zina with his sister at some unknown place.
4. On this report, a case under sections 10, 11, 16 and 19. The Offence of Zina (Enforcement of Hadood)
5. Act, 1985 read with section 14. The Offences Against Property (Enforcement of Hadood) Act, 1985 was registered. After necessary investigations, the petitioner along with other accused-persons was sent to face trial before Additional Tehsil Criminal Court No,1, Kotli.
6. ' After arrest, the petitioner filed bail petition before Additional Tehsil Criminal Court No,1 Kotli on 28- 11-2011 which was dismissed on 3-12-2011.
7. Feeling aggrieved, petitioner presented another bail application before District Criminal Court Kotli which was also dismissed vide order dated 20-12-2011. The accused-petitioner once again approached Additional Tehsil Criminal Court No,1 Kotli for grant of bail on 4-1-2012 but his prayer was declined vide order dated 7-1-2012. Feeling dissatisfied with the aforesaid order the accused- petitioner again presented a bail petition before District Criminal Court Kotli on 13-1-2012 whereby the concession of bail was again declined to him on 20-1-2012, hence this revision petition.
8. ' Liaqat Hussain Mughal, the learned counsel appearing on behalf of accused-petitioner strenuously argued that F.I.R was lodged after delay of forty four hours, therefore, it creates doubt and suspicion in the veracity of the prosecution case. The learned counsel further contended that the benefit of section 169, Cr.P.C. Was extended to three women accused which also makes the prosecution versions as doubtful. The learned counsel agitated that the allegation of taking away the ornaments has been levelled against Mst. Naveeda Kausar accused therefore, the petitioner cannot be charged under section 14, EHA. The learned counsel maintained that according to F.I.R Muhammad Bashir and Mobeen Akram saw the accused-persons together while going away from Kotla towards Khuiratta but they were not cited as witnesses in the calendar of challan and the complainant has also not supported the aforesaid version in his statement recorded under section 161, Cr.P.C. The learned counsel pointed out that Aurangzeb (P.W.5) has filed an affidavit whereby he has refuted the prosecution, version. Similarly, the evidence of retired Subedar Muhammad. Sher Khan (P.W.6) is of hearsay whereas the witnesses for recovery of Mst. Naveeda Kausar are her brothers. The learned counsel pressed into service the submission that no direct evidence has been placed on record to connect the accused-petitioner with the commission of Zina and medical examination report also negates the prosecution story because it shows that Zina was not committed with Mst. Naveeda Kausar within seventy two hours of the examination. The learned counsel pointed out that Mst. Naveeda Kausar has solemnized marriage with her free-will with the accused-petitioner but her relatives did not like it therefore, a false case has been registered against him. The learned counsel further argued that the Court below failed to appreciate the prosecution evidence in a legal fashion and exercised its discretion in an arbitrary manner. The learned counsel finally submitted that the impugned order may be set aside and the petitioner be released on bail. In support of his contention the learned counsel cited the following authorities:--
(1) 1984 PCr.LJ 1051-2475 and 2481.
(2) 1994 PCr.LJ 2034.
9. ' Raja Imtiaz Ahmad Khan, the learned counsel for the complainant controverted the arguments raised by the learned counsel for the petitioner and submitted that the petitioner has been nominated in the F.I.R and a specific role has been attributed to him. He induced and abducted a young girl with an intention to commit Zina with her. Mst. Naveeda Kansar was also recovered from his possession, stolen cash and ornaments were also recovered on his pointation therefore, the filing of challan is not an important factor which could entitle the accused-petitioner for grant of bail. The learned Counsel pointed out that young girl was abducted therefore, delay in F.I.R is natural because relatives firstly do search the whereabouts of the girl at their own and thereafter they approach the police. Therefore, delay in F.I.R is not fatal to the prosecution case. The learned counsel agitated that Mst. Naveeda Kausar is pregnant therefore, medical evidence fully supports the version of the prosecution and thus, petitioner is involved in a heinous offence. According to the learned Counsel the impugned order was passed in a legal fashion which does not warrant any interference. In support of arguments the learned counsel referred to me the following case-law:-- PLD 1998 SC (AJ&K) 43. 2007 PCr.LJ 649 Lah. 2008 SCR 326.
10. ' Muhammad Rafiq Shaheen, Additional Advocate-General appearing on behalf of the State fully owned and supported the arguments raised by the learned counsel for the complainant and submitted that both the accused-persons are first cousins and petitioner is a married man, father of two children who committed a heinous offence like Zina therefore, he is not entitled to be released on bail.
11. ' I have very carefully taken into consideration the points canvassed by the learned counsel for the parties, after perusing the record made available with care.
12. In the instant case the accused-petitioner has been nominated in the F.I.R and a specific role of inducement, abduction and commission of Zina has been levelled against him. According to prosecution Mst. Naveeda Kausar was recovered from his possession from room of VIP Hotel Charhoi and Rs,17,000 along with two golden ear-rings were also recovered on his pointation, out of the stolen property. In the light of Medical Examination Report Mst. Naveeda Kausar was found pregnant thus, prima facie, sufficient evidence has been placed on the record to implicate the accused-petitioner with the commission of offence which falls in the prohibitory clause of section 497, Cr.P.C. In such-like cases refusal of bail is a rule and its grant is an exception but I do not find any exceptional circumstance in the present case which could entitle the petitioner for grant of bail.
13. ' The contention of the learned counsel for the petitioner is devoid of any force that both the witnesses for recovery of Mst. Naveeda Kausar are her brothers. The perusal of file shows that according to prosecution, Mst. Naveeda Kausar was recovered from the accused-petitioner in presence of Muhammad Hussain son of Muhammad Akram (P.W.2) and Muhammad Naseem son of Karamat-Ullah (P.W.3) whereas Mst. Naveeda Kausar is daughter of Muhammad Azam.
14. ' I also cannot subscribe to the view of the learned counsel for the petitioner that due to delay in F.I.R the case of the prosecution has become doubtful and accused-petitioner is entitled to be released on bail on this score. It will be useful to mention here that in such-like cases delay in lodging F.I.R. Is not fatal to the prosecution case because naturally people void approaching the police station firstly because of family honour and they make attempt to recover the abductee at their own. My aforesaid view finds support from a case reported as Atif Ali Shahzad v. The State and another 2007 PCr.LJ 649 whereby in a case of Zina-bil-jabr, the F.I.R was lodged after delay of 475 days but the Court refused the concession of bail to the accused-petitioner.
15. ' It has been ruled in Nazir Ahmad Khan and 3 other's case PLD 1998 SC (AJ&K) 43 that the delay in filing F.I.R is not fatal like a rule of limitation as the case is in civil matter. Furthermore, it was also observed that the explanation for the delay can be given during the course of trial.
16. ' The aforesaid view was further affirmed in Niaz Ahmad's case 2008 SCR 326 wherein it was opined that if at all F.I.R. Was recorded after preliminary investigation, it is not sufficient to discard the prosecution case as false and it cannot be thrown away on this ground only ' In this manner, in the light of the aforesaid dictum of apex Court of AJ&K Anwar's case 1984 PCr.LJ 1051 cited by the learned counsel for the petitioner, which relates to a murder case cannot be relied upon.
17. The contention of the learned counsel that Naveeda Kausar solemnized marriage with the petitioner is spelled as being misconceived and without substance because such-like defence plea of Nikah between the petitioner and Naveeda Kausar could only be considered by the trial Court and this Court cannot give any finding at the stage of bail particularly when otherwise no case for further inquiry is made out. Similarly, the extension of the benefit to the women accused under section, 169, Cr.P.C. Also does not entitle the accused-petitioner to be released on bail.
18. ' As held earlier', prima facie, sufficient evidence and reasonable grounds exist to connect the accused-petitioner with the commission of offence therefore, mere filing of affidavit by Aurangzeb (P.W.5) or the statement of Retired Subedar Muhammad Sher Khan (P.W.6), the exclusion of Muhammad Bashir and Mobeen Akram as P.Ws does not adversely affect the prosecution version.
19. ' As far as the other authorities referred to by the learned counsel for the petitioner are concerned, are distinguishable from the facts of the instant case and in bail matters an authority in one case is hardly helpful to another case because each case has its own peculiar circumstances.
20. ' For instance, in Mst. Nusrat Mai's case 1994 PCr.LJ 2034, the bail was granted to the accused on the basis of sex and on the conduct of P.Ws who were found peeping in the house of the lady during the night to detect her sin.
21. ' In Muhammad Hayat's case 1994 PCr.LJ 2475 Lah. The concession of bail was allowed to the accused on ground that in the light of the statement of the son of complainant, his mother remained in house with accused was not sufficient to conclude that accused committed Zina with her.
22. ' In Mansha's case 1984 PCr.LJ Lah, 2480, the accused was released on bail on the ground that Mst.
23. Kalsoom was not medically examined and she had also filed a suit for jactitation of her marriage in the Family Court disowning her husband and claiming the accused as her legal husband.
24. Pursuant to the above discussion, a prima facie case has been established against accused- petitioner and no sufficient grounds are available on the record which could show that the accused is not guilty of the offence with which he is charged. Thus, the exercise of discretion by the Court below does not smack of any perversity or arbitrariness therefore, the impugned order is maintained.
25. ' The upshot of the above discussion is that finding no force in this petition, it is hereby dismissed.