' Gulzar Ahmed, petitioner, has moved this petition for cancellation of to Hamid accused- respondent herein, by Sardar Muhammad Raza Khan, Sessions Judge, Abbottabad. In a case registered against him and others under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at Police Station, Cantt., Abbottabad, vide F.I.R. No,3885 dated 13-4- 1992.
2. The charge against the accused-respondent precisely is that he alon gwith his 5 other co- accused enticed away Mst. Baseerat Bibi on 13-4-1992 at about 3-00 p.m. With intent that she may be compelled or knowing it to be likely that she may be compelled to marry Hamid accused against her will or that she may be forced or seduced to illicit intercourse and is alleged to have committed sexual intercourse with her from 13-4-1992 to 16-4-1992. On 16-4-1992 accused- respondent No 1, his co-accused Khurshid and the abductee were apprehended in the Local Bus Stand, Abbottabad. Her statement under section 161, Cr.P.C. Was recorded on 17-4-1992 while she was examined under section 164, Cr.P.C. On 18-4-1992. In both these statements she has charged the co-accused of the petitioners to have lent a helping hand to Hamid accused-respondent in enticing her away while the charge against the accused-respondent is that he had been committing "Zina-bil-Jabr" for 3 days with her.
3. The abductee was medically examined on 16-4-1992 at 11-30 a.m. At D.H.Q. Hospital, Abbottabad and found that hymenal tears show that sexual intercourse had taken place. According to the father of the petitioner and the lady doctor who had examined her, the abductee was aged about 12/13 years whereas according to the X-ray examination she was 16/17 years old.
4. The learned Sessions Judge who had granted bail to the accused-respondent has observed that many witnesses have denied the presence of the girl in village Masina Pattan where allegedly the Zina had been committed with her and further that "the allegations of Zina against petitioner Hamid are so closely linked with the allegations against Gulzar that these being inseparable remain yet to be determined at trial". Again the learned Sessions Judge held the view that "the co- accused Gulzar had already been released on bail, therefore, the petitioner and respondent Abdul Rashid whose role is still minor are entitled to remain and be released on bail". It was in these circumstances that the petitioner was admitted to bail pending trial by the learned Sessions Judge.
5. Mr. Amir Hussain Abbasi, learned counsel for the petitioner contends that the discretion exercised by the learned Sessions Judge in extending the concession of bail to the accused-respondent was neither in accordance with law nor the principles laid down by the superior Courts for grant of bail in an offence of Zina or `Zina-bil-Jabe. The learned counsel emphasised that the learned Sessions Judge has fallen into a grave error to observe that the role of Hamid accused-respondent was minor than that of his co-accused. In this context it has been submitted that the other co-accused have not been charged for committing Zina with the abductee, whereas accused-respondent has been charged by her both the statements; one under section 161, Cr.P.C. And other under section 164, Cr.P.C. That it was Hamid accused-respondent who had been committing Zina-biltJabr with her for three days. It was further contended that no sooner the accused-respondent brought back the abductee from Masina Kalan to Abbottabad, than the abductee was apprehended by the police alongwith Hamid accused-respondent and his co-accused Khurshid, which fact coupled with the medical examination conducted within an hour of her recovery goes a long way to prove the factum of abduction and Zina.
6. Mr. Muhammad Aslam Khan, AA.-G. Appearing on behalf of the State has supported the plea for cancellation of bail raised on behalf of the petitioner.
7. Qazi Muhammad Arshad, the learned counsel for the accused-respondent submitted that as the challan against the accused has since been put into the trial Court, therefore, it would not be appropriate to recall that order at this stage. On merits too the learned counsel for the accused- respondent has supported the impugned order. He has also adopted the reasoning of the learned Sessions Judge and urged that Abdul Karim Imam of Mosque in village Maseena Pattan and manyothers who were examined by the police had categorically denied everything attributed to him.
8. The observations of the learned Sessions Judge that the allegations of Zina against Hamid accused-respondent are so closely linked with the allegations against Gulzar that these being inseparable remain yet to be determined at the trial, are, to say the least, absolutely not borne out from an iota of evidence on the record. The role of Hamid of actually committing Zina is far severer than Gulzar. There is no question of the identity of the role attributed to Hamid, Gulzar or for that matter to Abdur Rashid co-accused of the accused-respondent. All the rest might have lent a helping hand to Hamid but enticing away the abductee with intent to marry or to commit Zina with her is prima facie attributed to Hamid accused-respondent. The two statements of the abductee and the medical examination conducted within an hour of the A recovery of the abductee prima facie connect the accused-respondent with the offences with which he has been charged.
Apparently there is no animus for false charge against the accused-respondent for the pivotal role for which he has been involved.
9. The learned counsel for the accused-respondent has not been able to cite any authority in support of his plea that if the challan in a case under section 10, 11 or 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is put into the Court then it is not appropriate to cancel the to an accused involved in the aforesaid offences. No doubt in the precedent case of "Muhammad Ismail v. Muhammad Rafiq and another" (PLD 1989 SC 585) the well-known practice of the superior Courts of Pakistan was affirmed that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. Now the "well-known practice of the superior Courts of Pakistan" referred to in the case of "Muhammad Ismail" is relatable to a murder case and not to the cases falling under the provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Again in such like murder cases "Ordinarily the bail applications are not decided on merits". Still there may be very exceptional circumstances in which the concession of bail extended to an accused person involved in a murder case may be recalled even if the case has been fixed for hearing. The ratio in the case of "Muhammad Ismail" is circumscribed by the well-known practice of the superior Courts and the use of the words ordinarily. In any case the plea raised on behalf of the accused- respondent on this score is not tenable.
10. While allowing this petition, the to the accused respondent is cancelled. He is present in Court, taken into custody and has been remanded to jail. The record of the case should be sent forthwith to the trial Court, which shall proceed with the case expeditiously in accordance with law.
Bail cancelled.