MALIK HAQ NAWAZ, J.---Since both these Cr. Misc. Petitions being No, Cr. Misc. 73/2017 and Cr.
Misc. 71/2017 have been filed in the case arising out of one and the same FIR, hence, these are being disposed of through this single judgment.
2. The prosecution story briefly stated is that on the day of occurrence, the petitioners along with their co-accused namely Saeed-ur-Rehman, abducte one Mst. Majida daughter of Ashiq resident of Murtazabad Bala, Hunza. They were intercepted at a barrier of Police Chowki Ganash. The initial investigation divulged that the petitioner and co-accused took the victim lady in a car bearing registration No,GLT 6811 being driven by accused Din Ullah and took her into a hotel at Gulmit Gojal, where co-accused Saeed-ur-Rehman committed sexual intercourse with her. The FIR No,7/2017 dated 18.3.2017 under sections 376/365-B/34, P.P.C. was registered against the petitioner and co- accused.
3. The petitioners after their committal to judicial lockup applied for post arrest bail in the trial Court, which were declined vide orders dated 18-05-2017, passed in Cr. Misc. No, 27/2017 and Cr.
Misc. No, 34/2017 respectively.
4. The learned counsel for the petitioners seek bail on the ground that the case is false and the petitioners have been booked falsely. Further that there are no allegations of Zina/abduction against the petitioners and it was co-accused Habib-ur-Rehman, who is charged for commission of Zina with the lady. Per learned counsel the offences imposed in the FIR are not attracted in the case of the petitioners and their case is one of the further inquiry falling under section 497(2), Cr.P.C. The learned counsel relied on 2012 SCM R 647, 2009 PCr.LJ 312, 2008 PCr.LJ 1082 and Cr. Misc.
No, 64/2017 in support of his contention.
5. On the other hand Mr. Mir Muhammad, learned Additional Advocate General opposed the petitions and controverted the arguments raised at bar by the learned counsel for the petitioners and stated that the petitioners were caught red handed while traveling in a car with the victim. Per learned Additional Advocate General the offences entails the punishment of life imprisonment and is also an offence against the society, hence bail should not be allowed to the petitioners.
6. Having heard counsel of both the parties at a considerable length and perused the record. It would be appropriate to reproduce section 365-B, P.P.C. for the ready reference:- [365-B. Kidnapping, abducting or inducing women to compel for marriage etc.--- Whoever kidnaps or abducts any women with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing, it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and shall also be liable to fine; and whoever by means of criminal intention as defined in this. Code or of abuse of authority or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable aforesaid.]
7. A careful study of the above quoted section shows that to constitute the offence under section 365-B, P.P.C. two essential ingredients must be fulfilled i,e, first by removal of a women from one place to another place and secondly the object behind such removal should be to compel her to marry against her will or that she will be seduced to sexual intercourse against her will.
8. In the case in hand, the I.O. of the case who was present in the Court on Court notice along with record of the case, was asked to assist learned Additional Advocate General and to lay hand on any incriminatory evidence against the petitioners to saddle them with the commission of offence and their being in league with the principal accused Saeed-ur-Rehman against whom the allegation of Zina has been leveled by the alleged abductee. The major portion of the prosecution story is falsified from the conduct of the alleged abductee, who with her free will and implied consent accompanied the petitioners and co-accused and neither raised any alarm or resisted, when the principal accused Habib-ur-Rehman booked a room of a hotel and allegedly committed Zina with her and that too against her will. A women is a weakest creature of the nature and the experience suggests that she will depose in favour of a party, with whom her custody would be at the relevant time and it seems that she changed her stance when she was taken into custody by the local Police. Even from tentative assessment of the material collect during investigation it could be safely gathered that the alleged abductee was a consenting and willing party to whole of this nasty affairs, as reflected from her statement recorded by the Police under section 161, Cr.P.C. and a bare reading of FIR.
9. The case of the present petitioners is distinguishable from the case of their co-accused Habib ur-Rehman, against whom, there are serious allegation of commission of Zina, which is a very heinous offence and his case will be dealt with according to its own merits.
10. What has been discussed above, the culpability of the present petitioners requires further inquiry and their case for grant of bail has been made out. Needless to mention here that in criminal law a person is presumed to be innocent till proven guilty. Part-II of constitution of Islamic Republic of Pakistan, 1973 and Part-II of Governances and Self Empowerment Order, 2009 Gilgit- Baltistan are synonymous. It is fundamental right of a person to enjoy life and liberty within the scope of fundamental right and liberty of a person could only be curtailed save in accordance with law. One cannot be kept in detention as a matter of advance punishment.
11. As a sequel of above discussion the petitioners are admitted to bail subject to furnishing of bail bonds in the sum of. Rs, 10,00,000/-(ten lac) with two reliable sureties each in the like amount to the satisfaction of trial Court.
12. Needless to mention here that my observations are only tentative in nature and shall not be used in favour/against any party during proceedings of this case and the learned trial Court shall form his own independent opinion in accordance with the merits of the case.