' Muhammad Iqbal and Mst. Shagufta have filed this application for their release on bail. They are charged under section 11/16/5/10. Offence of Zina (Enforcement of Hudood). Ordinance, 1979 in case F.I.R. No, 209 dated 27-9-1996 of Police Station Garhi Habibullah.
2. The complainant Bashir Ahmed who is father of Mst. Shagufta has made a report wherein he has charged Muhammad Iqbal for having abducted/enticed away his daughter Mst. Shagufta in order to detain her unlawfully and subject her to illegal intercourse and Zina, and that to compel her for marriage against her will.
3. On the registration of the case, investigation started and the two accused-petitioners were arrested on 7-10-1996 when they were produced before the police by some of their relatives.
4. Both the petitioners, on 8-10-1996 had made confessional statements wherein they are consistent on the point that they both left their respective houses and village, went to Lahore, stayed there for couple of nights and during their stay at Lahore they had been indulging in sexual intercourse.
5. The two petitioners, on their arrest were medically examined and according to medical opinion Muhammad Iqbal was found to be capable of performing sexual intercourse while, on medical examination Mst. Shagufta's uterus was found to be of normal size and there was old tear of hymen. Vaginal swa bs were also taken and sent to the Chemical Examiner whose report is now available on the file and is positive.
6. Learned counsel for the petitioner vehemently argued that no case of abduction or enticement can be spelt out from the narration of F.I.R. Or even from the confessional statements. Further, argued that both the confessions are to the effect that the petitioners had left their house with the object that they will enter into valid marriage by performing Nikah as such it was argued that there was no malice on the part of either of the petitioner to indulge in Zina for the purpose of invoking to criminal liability as envisaged by section 10 of Zina Ordinance.
7. Rebutting the arguments in support of bail as put forward by the learned counsel for the petitioners, the learned State counsel assisted by Mr. Shad Muhammad Khan, Advocate for the complainant it was argued that both the petitioners have indulged in illegal sexual intercourse and that there is medical evidence which confirmed the fact of Zina being committed. It was also argued that the two petitioners if having bona fide intention of entering into Nikah, they instead of going to Lahore should have entered into Nikah at their village or if not possible in the village then somewhere in close proximity of their native town. Further, if their intention was fair and lawful they should not have indulged in Zina before the actual performance of Nikah.
8. I have heard the arguments of the learned counsel for the parties. There are two confessions by each of the petitioners which on the face of it appear to be inculpatory. The commission of Zina had been admitted therein. The medical evidence supports prima facie the case of the prosecution; that the Chemical Examiners Report also shows that semen-stains were detected in the swa bs taken from the vagina of the female accused. The conduct of the two accused- petitioners after leaving their native Town and going to Lahore and then staying on one and other station during which they have been indulging in sexual intercourse, though with consent will not exonerate them from criminal liability.
9. The law as laid down in the Enforcement of Hudood Ordinance makes both male and female accused equally responsible.'when there is consent even by one of the party, the ingredient of offence of Zina stands completed. The conduct of male accused who has taken the female accused to Lahore without the permission of her parents or guardian will show malice on the part of male accused and the female accused who had accompanied the petitioner (male accused) in a manner which is not akin to the social norms of our society makes her equally responsible for enticement and inducement.
10. The perusal of the record also reveals that the trial in the case had commenced when case was sent up for trial to the Court of learned Sessions Judge Mansehra on 5-12-1996. On the following dates the provisions of section 265, Cr.P.C. Were complied with and some of the P.Ws. Have been examined. In this view of the matter too, this Court will not entertain the instant bail application.
11. In a case where the trial has commenced and the merits of the case are also such from which a case cannot be made out for further inquiry, this Court will not exercise discretion in favour of the accused petitioners. Resultantly this application is dismissed.