' Abdul Khaliq, the complainant charged Syed Muzamal Shah accused-respondent for Zina with his wife inside his house at `Asha Vela' on 11-10-1985, vide F.
1. R. No, 137, P. S. Balakot, District Mansehra, dated 17-10-1985. He.Stated that on the eventful night his father Qamar Zaman, a Pesh-Imam in the village mosque had returned to his house after leading `Asha' congregation when he found his daughter-in-law Mst. Gul Nargas all naked in compromising position busy in the offence of Zina with the accused-respondent. He raised the alarm at which Rafique a boy of 12113 years sleeping in the adjacent room was attracted who had found the accused-respondent quarreling with the complainant's father in connection with the offence of Zina and had later on fled away. He had also seen Mst, Gul Nargas the lady lying naked on the Charpai. On the morning the complainant's father had started to P. S. To lodge the report when he was met by Ghulam Mujtaba, Chairman of the 'Islahi Committee' and Ayaz Shah the father of the respondent who requested him not to lodge the report and accordingly a Jirga was convened by Maulvi Habib-ur'Rehman the Chairman'of the Union Council which was attended amongst others by Syed Abdul Haq Shah, Member District Council, Abdur Rashid and Ghulam Mujtaba Khan. In the Jirga the complainant's father and Mst. Gul Nargas took oath on the Holy Qur'an about the commission of the offence on which Muzamal Shah accused-respondent also confessed his guilt before the Jirga and as a result he was fined Rs, 25,000, which he failed to pay on the due date when as a last resort the report was lodged by the complainant on 17-10-1985 with the delay.
2. During the course of investigation Mst. Gul Nargas, Muhammad Rafique, Abdul Haq Shah, Ghulam Mujtaba, Maulvi Habib-ur-Rehman and Abdur Rashid etc. Were examined who all supported the case of the prosecution as above. Prosecution has collected the evidence in the extrajudicial confessions of the accused-respondent as well of co-accused Mst. Gul Nargas, the eye-witness account of the complainant's father and the semi-eye-witness account of Muhammad Rafique who had seen the accused-respondent altercating with the complainant's father on the point of the commission of the offence of Zina and further seeing the co-accused Mst.
Gul Nargas lying naked on the Charpai.
3. The learned Additional Sessions Judge granted bail to the accused-respondent for the offence of the commission of Zina was evidenced by a single witness and further that the offence was falling under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for which the maximum punishment provided under the law was 10 years' imprisonment.
4. I am constrained to remark that the learned Additional Sessions Juke has perhaps not read the provisions of subsection (1) of section 497, Cr. P. C. Which duly prohibit bail THE case of offences punishable with 10 years' imprisonment along offences punishable with death or imprisonment for life in presence of reasonable grounds connecting the accused with the offence. He has further not cared to take notice of the fact that herein there were made extra-judicial confessions by the accused-respondent as well the co-accused before disinterested persons in the members of the Jirga.
5. Mst. Gul Nargas was examined by the lady doctor on 18-10-1985 when she had been menstruating for the last 2 days at then. The lady doctor could not, therefore, give the duration of the commission of the rape. Mst. Gul Nargas has, however, stated before her that the rape had occurred some 3 days back. Vaginal swabs were taken which were sent to the Chemical Examiner wberefrom the report has not been received as yet. There was filed a copy of the plaint in a dissolution suit, vide the co-accused has alleged that she has been falsely charged for adultery . It was argued that the co-accused has since retracted from her so-called confession once stating before lady doctor on 18-10.1985 that the rape had occurred some three da)s back i. e. On 15-10- 1985 while prosecution charges the accused for Zina on 11-10-1985 and secondly she had denied the charge of adultery in her plaint in the dissolution suit. I need not discuss the aspect of retraction of the confession by the co-accused or even the accused-respondent at this stage as these are matters for consideration at the trial to weigh the evidentiary value of the confessions.
6. To sum up, herein the prosecution has presently succeeded to bring sufficient evidence on record to connect the accused-respondent with the commission of an offence punishable with 10 years' imprisonment. Besides accused-respondent stands charged for an offence of Zina with a married lady. He cannot be favoured with the concession of bail for the prohibitory offences of the like in the circumstances of the case. His bail is, therefore, cancelled. He is taken into custody and handed over to the police to be lodged in the judicial lock-up pending his trial.