' Mst. Sarwar Jan, mother-in-law of Mst. Zuhra reported to the police that her daughter in law has disappeared from the house and this fact was recorded in daily diary No,13, dated 18-1-1997 of Police Station Nawanshehr.
2. Muhammad Pervaz, the husband of Mst. Zuhra appeared in the police station (women)
Abbottabad on 22-1-1997 at 10-00 a.m. And informed the police that his wife, about whose disappearance a report has already been made had in fact been enticed away with a view to commit Zina by Jaffar Shah (the present petitioner), Banaras Shah, Gulab Shah and Mst. Sakeena.
3. A case was registered under section 11/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the investigation commenced.
4. On 23-1-1997 Mst. Zuhra appeared before Assistant Commissioner Abbottabad' with an application that she be directed to be sent to Darulaman. The learned Assistant Commissioner recorded her statement under section 164, Cr.P.C. And acceding to her request passed an order on the same day to the effect that she be medically examined and then, sent to Darulaman. There was a categorical direction that no one shall be allowed to meet Mst. Zuhra during her stay in Darulaman.
5. The S.H.O. Of Police Station (Women) Abbottabad having learnt of presence of Mst. Zuhra in Darulaman went there, and recorded her statement under section 161, Cr.P.C. On 26-1-1997 being an abductee iii case F.I.R. No,5, dated 22-1-1997.
' Earlier, the S.H.O. Police Station Women has taken Mst. Zuhra to Lady Doctor for medical examination which was done on 26-1-1997 and a report of the Lady Doctor was obtained which was to the effect that no injury was found on her private part. Hymen was old torn and healed.
Vagina admit two fingers easily and she was well used to several intercourse. Vaginal swabs were also taken as the Lady Doctor could not formulate opinion about the duration of last intercourse cohabited with Mst. Zuhra the abductee. The result of swabs is now available on the file according to which semen of human original was detected. The abductee, was then, produced before a Magistrate and her statement under section 164, Cr.P.C. Was got recorded.
6. It is pertinent to mention here that in the aforesaid two statements the abductee in very expressed terms had levelled a charge of Zina-bil-Jabr against Jaafar Shah, the petitioner.
7. As stated above, four persons were charged in the report including the petitioner, of them, Mst.
Sakeena was allowed pre-arrest bail while Gulab Shah and Benaras Shah are on bail by order of learned Civil Judge/Judicial Magistrate, dated 5-3-1997. The petitioner also applied for bail but his request was turned down by the said Court. Thereafter, an application was moved in the Court of learned Sessions Judge Abbottabad which application also met the same fate. Hence this application.
8. The contentions of the learned counsel for the petitioner are that the abductee has made a statement on 23-1-1997 in which she had charged none and having been sent to Darulaman it was thereafter that she charged the present petitioner for Zina-bil-Jabr on 26-1-1997 while making statement to the police. In the said statement which was recorded after considerable delay shows that she was prompted to divest from her original stand taken on 23-1-1997. It was also contended that the medical evidence is in negative in as much, that no mark of violence was found on the person of the abductee. It was also argued that Jaafar Shah petitioner had not been medically examined for determination of the fact whether or not he is capable of performing the act of sexual intercourse. Lastly it was argued that it is a case of elopement and the sexual intercourse committed will be covered by Zina and not Zina-bil-Jabr because the facts and circumstances of the case as described by Mst Zuhra in her statement recorded under section 161, Cr.P.C. And later under section 164, Cr.P.C. On 27-1-1997 are indicative of the fact that she was a consenting party. In support of his submissions the learned counsel cited Shafiq and others v. State 1987 MLD page 1121.
In this case there was no evidence of abduction and her statement was recorded after 7 days by the police. The learned Judge of Lahore High Court in the above cited judgment in the aforesaid circumstances allowed bail to the petitioner. Similarly Muhammad Irfan v. State NLR 1996 Criminal page 47 was also relied in support but in the said case at some stage the abductee had claimed to be the legally wedded wife of the petitioner and on the score bail was allowed. 1996 MLD 1356 Iqbal Sanam v. State was cited to dislodge the evidentiary value of Mst. Zuhra abductee on the ground that she had been making varying statements at different times. It was this vacillating conduct which was taken note of and bail was allowed in that case.
9. Opposing the contentions of the learned counsel for the petitioner the learned counsel for the complainant and the Assistant Advocate-General for the State submitted that the role attributed to the petitioner by the lady is a truthful a correct version. She has implicated the petitioner for committing Zina-bil-Jabr with her. The medical evidence support the case of the prosecution. The absence of mark of violence is explainable because the abductee was a married woman and that swa bs taken were sent to the Chemical Examiner and the report is positive. It was also argued by the complainant side, that there is no reason for the complainant party to bring a false charge against the petitioner at the cost of their reputation and family honour. In support of their contentions reliance was placed on Munsif Khan v. Muhammad Saleem and others PLD 1992 Pesh.
Page 136 where bail was cancelled by the Honourable Judge of this Court and it was observed as under:--- "Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), section 6/10/11/16---Bail, cancellation of--Victim girl in her statement duly recorded by a Magistrate had charged the accused for committing Zina-bil-Jabr at different times and places after the abduction from the house of her parents---Grant of bail to accused in such circumstances was not justified and the same was re-called accordingly."
' Similarly in another case reported in Abdur Razaq v. State 1993 PCr.LJ page 1603 bail was refused inter alia on the ground that the abductee had levelled allegations of Zina against accused in her statement before Magistrate as well police.
10. After hearing arguments of the learned counsel for the parties I am of the opinion that in the case there is total absence of any sinister designs on the part of the complainant more so Mst.
Zuhra to be swa yed away to bring a false charge. The swabs taken from vagina contained semen of human origin. From 23-1-1997 till 26-1-1997 she remained in Darulaman when she was produced for medical examination and during this time no one was permitted to meet her as was ordered by the learned Assistant Commissioner Abbottabad on 23-1-1997 while sending her to Darulaman.
This would exclude her having cohabition with her husband. Last before medical examination per her own statement she was subjected to sexual intercourse by Jaafar Shah and none else.
11. Learned counsel for the petitioner had laid much stress by making repeated references to her statement recorded on 23-1-1997 under section 164, Cr.P.C. And stated that it being her first version where no one was charged shall be taken as true and any consequent statement be ruled of. On the face of it this argument appears to be attractive but if viewed in the entire background of the surrounding circumstances it looses its weight because her statement of 23-1-1997 was not narration of fact but a request to be sent to Darulaman. Moreover the Assistant Commissioner while recording her statement on the basis of her own application was not seized of the facts of this case and could not had taken cognizance. In fact any such statement recorded by the Magistrate cannot be treated to be the statement under section 164, Cr.P.C. At all. Section 164, Cr.P.C. Appears in Chapter XIV of the Code of Criminal Procedure relating to "information to the Police and their powers to Investigate". A Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the (Provincial Government) may, record any statement or confession made to him in the course of any investigation under this Chapter or at any time afterward before the commencement of the inquiry or trial.
' In view of the above legal position the statement recorded on 23-1-1997 cannot be treated to be a statement recorded during investigation. From the facts and circumstances of the case it has been admitted by the learned counsel for the petitioner that it is a case of Zina and not Zina-bil-Jabr and, therefore, Mst. Zuhra should have been made an accused. This Court cannot make any observation in this respect as it being the domain of the Investigating Agencies.
The upshot of the above discussion is, that there appear reasonable grounds for believing that the petitioner is guilty of an offence which is covered by 'the prohibitory clause as contained in section 497(1), Cr.P.C. For these reasons the application is dismissed.