1. ' This is a case of abduction as well as rape. A challan is now prepared by the police to be presented before the District Criminal Court, Kotli under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance.
2. A bail application of the accused-applicants is also pending before the District Criminal Court, Kotli and as that application could not be seized by the District Criminal Court due to transfer of the Sessions Judge to the Law Department, this application was moved to this Court for bail.The counsel for the parties were heard.
3. Offence of rape is alleged to have occurred which as per statement of the prosecutrix was committed with her by Muhammad Asif accused. ' They were all alone when commission of the said offence took place. Muhammad Ishaque accused is involved in abduction of the girl and this is also per statement of the victim.
4. ' In the first information report a doubt was also cast upon some other persons for the abduction of the girl but on recovery of the girl no some others were found involved in the alleged crime in any manner. Vide statemen of the girl which was recorded by the police under section 161, Cr. P. C. o 12- 9-1982 (a copy of the statement was brought on record of this Court).
5. ' Mst. Shahnaz Akhter, the victim is cited as a witness of the prosecution from the very beginning.
6. She was not treated as an accomplice by the police. After her statement under section 161, Cr. P. C.
7. There was no justification for the investigating officer to arrest Muhammad Razzaq and Muhammad Islam and all the more there ought to have been no step taken by the police in attempt for making arrest of Muhammad Ikram, who on hearing of a case made against him on basis of doubt left for Pakistan and so was luckily saved from the clutches of the police.
8. Muhammad Islam and Abdur Razzaq who were absolutely innocent, were arrested by the police knowing it well that no offence was committed by them and even a doubt which was cast on them in the first information report was removed by the very statement of Mst. Shahnaz Akhter under section 161, Cr. P. C. A Revenue Magistrate, Kotli (Revenue Assistant) who sanctioned remand of the aforesaid persons, who had committed no offence, did not care to go through the police file to find out that they were deprived of their liberty by the police without a lawful authority.
9. ' It was twice that the innocent persons were remanded to the police custody by the said Magistrate. The purpose of the production of a person, who is arrested by the police, before the Magistrate is to show grounds for obtaining remand for further detention and it is the duty of the Magistrate to see whether there are reasonable grounds for sanction of remand or not. Here there were no reasons at all for sanction of remand of these person to the police custody who had committed no offence at all. On view of this matter, it is evident that the Magistrate exercised his authority in an illegal manner and unwarrantedly, the innocent persons were allowed to be detained by the police for a number of days. A show-cause notice shall issue to the Magistrate to appear before this Court and explain why h allowed the detention of the innocent persons in an illegal manner in the police custody by way of remand and that why his powers should not be withdrawn. So far the Investigating Officer Mr. Muhammad Tariq concerned, the Inspector-General of Police shall look at the matter and take necessary action against the said investigating officer.
10. After the statemen of Mst. Shahnaz under section 161, Cr. P. C. The Investigating Officer has no right or reason to arrest and further to pray to the Magistrate for their remand to the police. Does this act of the Investigating Officer not indicate that he did all this for some ulterior motive ? The Investigating Officers are supposed to deal with the cases responsibly and honestly so that the liberty of the persons is not unwarrantedly curbed and absconded as was done in this case by the Investigating Officer. The Supervising Officers of the police have also miserably failed in their duty in this case as they did not take notice of the wrong steps taken by the Investigating Officer.
11. Keeping in view the circumstances of the case, I allow bail to Muhammad Ishaque accused who is to be enlarged on his furnishing security in the sum of Rs, 1,000 with one surety and personal recognizance in the like amount to the satisfaction of the Additional District Magistrate, Kotli, who on attestation of the bonds furnished shall release the said accused accordingly. In case of Muhammad Asif accused, I leave his case of bail to the trial Court where his application for bail is already pending. His case stands on a different footing. There is allegation against him to have forcibly broken the virginity and virginhood of the girl and polluted and befouled the same and so it will not be proper for me to consider his prayer for bail at this stage of the case. The Sessions Judge may be posted very soon to enable the District Court to take cognizance of the bail matter pending before it.
12. ' That being so, this application is disposed of in the manner indicated above.