' A case under section 10/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is registered against the petitioner and others at Police Station, Khanqah Dogran, District Sheikhupura vide F.I.R.
No,222 of 1998, dated 28-6-1998 on the ground that Mst. Kausar Bibi a sister of the main accused namely Nosher went to the house of the complainant a married woman and took her out on some pretext while her co-accused were present outside. Out of them Nosher accused caught hold of her and boarded her in a Toyota wagon by showing her mouzer and latter on took her to his house in his village and committed Zina-bil-Jabr with her. This occurrence took place on 8-6-1998 whereas according to the complainant, she came out of the clutches of the accused on 28-6-1998 and on the same day she lodged report with the police without any delay.
2. The learned counsel for the petitioner has submitted that F.I.R. Was lodged with the delay of 20 days. In this respect he has contended that the complainant was abducted by the accused persons, but some body on her behalf i,e, her husband or relative should have lodged the report with the police. The absence of filing the report during the period of 20 days allegedly made the case of the prosecution doubtful.
3. Secondly, it is contended that no active part is attributed to the petitioner for the commission of Zina-bil-Jabr with the complainant although he has been shown to be present at the time of abduction of the complainant. It is, therefore, submitted that in such like cases, offence committed falls under section 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which is only punishable with 7 years imprisonment. As such the offence not being within the prohibitory clause, the petitioner would be entitled to bail in view of the principle laid down in Ali Muhammad v. The State reported as 1982 PCr.LJ 3 (Lahore). Likewise reliance was placed on Hayat Shah v. The State reported as 1982 PCr.LJ 1165 (Lahore) wherein it was held that if there is no allegation of rape against the petitioner, he would be entitled to bail.
4. The learned counsel for the State however, opposed the bail petition on the ground that the delay has been explained in the F.I.R. Itself. Secondly, that though petitioner is not attributed Zina with the complainant but he was present with his co-accused at the time of abduction and as such his vicarious liability in respect of abduction cannot be ruled out.
5. I have considered the foregoing submissions made at the Bar and also the contents of the F.I.R.
There is no allegation of Zina against the petitioner although he has been shown present at the time of abduction of the complainant. In such a situation, the rule laid down in Hayat Shah v. The State reported as 1982 PCr.LJ 1165 (Lahore) will be attracted. Accordingly allowing this petition, the petitioner is admitted to bail in the sum of Rs,30,000 with one surety in the like amount to the satisfaction of learned Trial Court.