This bail petition has been filed on behalf of -Muhammad Tariq, Muhammad ldris and Muhammad Hanif who have been arrested in case F. I. R. No. 18 dated 19th January, 1982 under section 10/Il of the Offence of Zina (Enforcement of Hudood) Ordinance, 1.979 registered at Police Station City, D. G.
Khan.
2. According to the prosecution case, the facts as per F. I. R. Lodged by Ghulam Yasin father of the abductees are that on 17th January, 1982 at about 9 p. m. His daughter Mst. Husina aged 16/17 years and his son aged 13/14 years were studying in the "batekh" of the house in City D. G. Khan. They were found missing when their mother went into that room at 11 p. m. He found footwear and a dopatta of Mst. Husina lying there. He expressed his suspicion against the petitioners including their mother and father because they were on visiting terms with the complainant's family being the immediate neighbours. Husina the abductee was recover--ed on 20th January, 1982 and was produced before a Magistrate for recording her statement under section 164, Cr. P. C. In that statement she had stated that the three petitioners had forcibly abducted her and her brother Zulfiqar and took them away in a car. She also levelled allegation of Zina against them. She was medically examined on 22nd January, 1982. No mark of violence was found on her person and her vaginal swabs were prepared for detection of semen but the Chemical Examiner made a report in the negative. It may be mentioned that Zulfiqar, who is a Matric student appeared before a Magistrate 1st Class at D. G.
Khan on 25th January, 1982 and made a statement wherein he made alarming disclosures. He declared that his mother forced his sister to prostitution. He asked his sister to bear that life for some days. On 13th January, 1982 he took her sister to a Court where her statement was attested expressing that she would marry Tariq (petitioner No.1). He and his sister then started searching the aforesaid Tariq but he was not found. On 20thIJanuary, 1982 they were returning from Dajal and leaving his sister alone he went to fetch water but in the meantime the police arrived and caught hold of his sister. He ran away due to fear. He categorically declared in that statement that nobody had violated him or his sister.
3. As late as 3rd March, 1982, Mst. Husina as well as Zulfiqar were produced by their counsel before a Magistrate for recording yet another statement under section 164, Cr. P. C. In this statement they gave woeful tale which gave me an impression of tutoring.
4. The petitioners were arrested beside their parents. They applied to the learned Sessions Judge for the grant of bail but their prayer was declined vide his order dated 15th February, 1982. Hence this petition.
5. I have heard the learned counsel appearing for the petitioners, the complainant and the State at some length and also perused the record.
6. Learned counsel appearing for the complainant has argued that Mst. Husina and Zulfiqar were abducted in a pre-planned manner inas--much as the affidavit purported to have been sworn in favour of the peti--tioners by Mst. Husina on 13th January, 1982 was forged and then they abducted forcibly the abductees. Later, on 25th January, 1982, they managed a statement of Zulfiqar recorded under section 164, Cr. P. C. Ill support of the aforesaid affidavit and thus they collected sufficient material to forestall the registration of a case of abduction against them. He next argued that the shoes and dopatta of Mst. Husina found lying in the batekh where she was studying immediately before her abduction is an important circumstance to infer that she as well as her brother were forcibly taken away. On the other hand learned counsel-for the petitioners argued, that the facts and the circumstances of the case should be weighed with this fact in mind that Mst.
Husina is a grown-up literate girl who is a student of intermediate while Zulfiqar aged 15/16 years is a student of Matric. He argued that there is a delay of 38 hours in making the report, there is no eye-witness in the case except the two abductees themselves, who had earlier made statements absolving the petitioners of the charge, the medical examination also rules out the use of force against the abductee, it further suggests that Mst. Husina was a girl of easy virtue. Absence of semen on the vagnial swa bs confirms that the petitioner did not violate her chastity as has been alleged in her subsequent statement by Mst. Husina. He next contended that it would be going too far to hold that the affidavit of Mst. Husina dated 13th January, 1982 was forged in order to execute earlier plan of abduction specially when no such finding has been given by the investigating Officer till today. He further argued that the prosecutrix has made divergent statement from time to time by improving her versions as well as addition in the number of the accused.
7. I have very carefully considered the points raised by the learned counsel of both the parties. One cannot escape the impression that both the aductees had made contradictory statements at different times. Both of them had separately made one statement each absolving the petitioners of the charges of abduction and Zina. The delay caused in reporting the matter to the police and the medical evidence coupled with the Chemical Examiner's negative report presently weighed heavily in favour of the petitioners. I am deliberately avoiding to make any comment for or against either of the parties lest their case gets prejudiced. Be that as it may, the facts of this case certainly call for further inquiry so as to ascertain as to which of the divergent versions given by the two abductees should be taken as a true one.
8. On account of the above discussions, I feel inclined to allow this petition. The petitioners be released subject to their furnishing bail bonds in the sum of Rs. 10,000 each with one surety each in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, I). G. Khan.