The two petitioners have been arrested in case F. I. R. No. 363 dated 5th Decembar, 1981 under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), registered at Police Station City, Dera Ghazi Khan, on the allegation that they abducted Mst. Amina wife of Muhammad Nasir and committed zina-bil-jabar with her.
2. The abductee produced before the Police on 12th December. 1981 by her parents. She made a statement before a Magistrate on 13th December, 1981. In that statement she averred that on 30th November, 1981 she was taken from her house by Muhammad Jameel, petitioner, on the pretext that her brother Sajjad had met an accident and she should accompany him. He book her to Kot Adu in a bus where Khurshid, petitioner joined them. Both the petitioners passed a night with her at Kot Adu and committed rape upon her per force. Next day she asked Khurshid, petitioner, to take her to her parents' house at Rawalpindi. At Rawalpindi, Khurshid, petitioner, again committed zina with her and next day she managed to escape and reached her parents' house and lived there till her return to Dera Ghazi Khan.
Learned counsel for the petitioners contends that Muhammad Jameel petitioner is below 16 years of age. According to the F. I. R., the abductee had left her house all alone, went to Muhammad Jameel, petitioner, who accompanied her up to the bus-stand and she boarded the .Bus and went away alone. Muhammad Jameel, petitioner, remained at Dera Ghazi Khan throughout and the complainant and his relatives have been interrogating him to find out the whereabouts of the abductee. The learned counsel further submits that from these facts it could be fairly inferred that Muhammad Jameel, petitioner, had not accompanied the abductee, muchless that he committed zina-bil-jabr with her at Kot Adu.
4. So far as Khurshid, petitioner, is concerned, the learned counsel submits that he was not known to the family of the complainant or the abductee. He is a permanent resident of Rawalpindi and the allegation that Khurshid, petitioner, took Mst. Amina from Kot Adu to Rawalpindi and committed zina-bil-jabr with her is totally false. According to the learned counsel it is unimaginable that a woman who on the preceding night was subjected to rape by the petitioner would still choose voluntarily to accompany him to Rawalpindi silently without making any complaint on the way. She did not tell about the accesses made on her by the petitioner even to her parents when she reached Rawalpindi.
5. The petitioners are in judicial lock-up for about two months. The challan is complete and is ready to be put in Court. Learned counsel for the State submits that medico-legal examination of Muhammad Jameel, petitioner, reveals that he is 17/18 years of age. He vehemently opposes the grant of bail to the petitioners on the ground that the offences with which the petitioners are charged are punishable with imprisonment for 10 years and above and, therefore, their case falls within the pro--hibitory clause of section 497, Cr: P. C.
6. I have considered the arguments advanced by learned counsel for the parties and also perused the record.
7. Muhammad Jameel, petitioner, is 1511 years old, according to the birth entry, which certainly has an edge over the medico-legal age given by the doctor by way of an estimate. According to the F.
I. R., .He only accompanied the abductee who is admittedly a major, mature and married lady, up to the bus-stand contrarily the abductee stated in her statement under section 164, Cr. P. C. That Muhammad Jameel, petitioner, accompanied her to Kot Adu and committed zina-bil-jabr with her.
Both the versions about Muhammad Jameel's role are at tangent with each other, therefore, his case is certainly one of further inquiry as to his complicity in this case. I, therefore, allow his bail in the sum of Rs. 10,000 (rupees ten thousand only) with one surety in the like amount to the satisfaction of the Assistant Commissioner/ Duty Magistrate, Dera Ghazi Khan.
8. So far as Khurshid, petitioner, is concerned, his name does not appear in the F. I. R. He appears to be a stranger to the family of the complainant. The abductee has not been recovered from his custody and the silence, the abductee had observed during her journey from Kot Adu to Rawalpindi is meaningful. It is not believable that a woman would volunteer to travel with a person who had perforce raped her on the previous night or would continue reposing confidence in him that he e would take her to her parents. These peculiar allegations intreague my mind which certainly would be thrashed at the trial. I deliberately with--hold my comments any further, lest it should prejudice the case of either party.
9. For what has been stated above, I am inclined to allow- bail to Khurshid, petitioner, as well. He should be released on bail subject to his furnishing. a bond in the sum of Rs. 10,000 (rupees ten thousand only) with the surety in the like amount, to the satisfaction of the Assistant Commissioner/ Duty Magistrate, Dera Ghazi Khan.