' Abdul Saeed son of Gul Hassan, resident of Haryala, reported the matter vide F.I.R. No,43 on 14-6- 1998 at 8 a.m. In Police Station Ghari Habibullah to the effect that he was serving in the Armed Forces and was posted at Kohat. He had been married to Mst. Shahida Parveen two years ago and they were issueless.
2. According to him his mother telephonically informed him that his wife had disappeared from the house on 11-6-1998.
3. Accordingly he came to his village and was informed that on 11-6-1998 at morning Namaz Vela Sagheer son of Muhammad Zaman was seen roaming about near his house and thereafter, Mst.
Shahida Parveen also disappeared. He was, therefore, satisfied that Sagheer and his unidentified friend had enticed his wife for the purposes of Zina and marrying her.
4. Investigation was initiated on the aforesaid report and on the same day Mst. Shahida Parveen was found unconscious in a jungle, namely, Rechh-diKalan about two miles away from the house of the complainant by P.Ws. Miskin son of Ghulam Haider a relation of the complainant and Miskin son of Akbar Ali at the information and pointation of Mst. Munawar Jan. The Investigating Officer, namely, Jawaid Iqbal, S.-I. Recovered the abductee on the same day from the residential Kotha of the house of the complainant where she was also found in semi-conscious condition vide Naqsha Waqiati and recovery memos. Available on the file in the presence of marginal witnesses, namely, Gohar Rehman who is stated to be the father of Shamrez accused Zaheer son of Ghareeb Khan and Abdul Saeed complainant. The abductee was medically examined by lady doctor on 14-6- 1998 at 11 a.m. Who found the following on "P.v viv. Healthy. Hymen ruptured. She was not found virgin. Dirty discharge from vagina and vagina was vulnerable for recent intercourse. Three vaginal swa bs were taken and specimen of blood and semen were sealed in a bottle Her whole body was scarred with bruises. Both legs and hands lacerated. She could not walk properly and her left breast was scratched. The doctor found that she was intoxicated for 3 to 4 days."
' After her examination she was admitted for necessary treatment.
5. On 17-6-1998 Investigating Officer produced her before the Judicial Magistrate/Civil Judge IV, Mansehra and her statement under section 164, Cr.P.C. Was recorded wherein she charged Sagheer and two others, namely, Shamrez and Majeed for committing Zina-bil-Jabr with her without her consent. The petitioner were arrested, who applied for bail before the Judicial Magistrate but could not succeed and their application was rejected on 25-7-1998. Thereafter, they moved the Court of Sessions and vide order, dated 24-8-1998 the learned Sessions Judge dismissed their petition.
6. Feeling aggrieved of the aforesaid orders of the two Courts below the petitioners have preferred the present petition.
7. I have heard the learned counsel for the parties and the learned Assistant.
' Advocate-General for the State. Learned counsel for the petitioners contended that from the F.I.R.
It appears that Mst. Shahida Parveen had eloped with some one on her own will and that on account of enmity and previous litigation the petitioners have been implicated falsely. He contended that the present case had been registered after the recovery of the abductee on 14-6- 1998, as such the charge was not free from prompting and the case has been registered by the local police after preliminary investigation. The learned counsel further argued that the abductee was a lady of easy virtues as almost 22 persons of the locality had given affidavits in support of the innocence of the petitioners which are available on the file. The learned counsel diverted my attention to the fact that the case was referred for re-investigation by the relevant authorities to the C.I.A. Staff and that investigation was carried out by another Officer, namely, Muhammad Maroof, Inspector whose investigation also exonerated the petitioners from the charges brought against them. The learned counsel further contended that the abductee was also produced before S.P., Mansehra and that she disowned the earlier charge brought against the petitioner by her vide her statement recorded on 17-6-1998. Thereafter, the local police had requested Ilaqa Judicial Magistrate for the discharge of the accused-petitioners under section 169, - Cr.P.C. But the Magistrate concerned refused the aforesaid request.
8. I have myself examined the record in detail and have come to the conclusion that the contentions of the learned counsel for the petitioners, which I have discussed above are correct to some extent but I am constrained to observe that the two Investigation Agencies, i,e, the local police and secondly the investigation carried out by Muhammad Maroof Khan, Inspector C.I.A.
Have tried to get the accused exonerated from the charge brought against them by Mst. Shahida Parveen the prosecutrix as long as she remained in their custody. The record suggests that the investigators aforesaid were supposed to be partial while conducting investigation, have tried to disturb the substance of the prosecution case on various occasions. It is an admitted fact that one of the marginal witnesses to the recovery of the abductee is an Ex-Chairman of the Local Council and is an influential person, namely, Gohar Rehman who happens to be the father of one of the accused, namely, Shamrez. In view of the addition of subsection (4) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 the punishment has been enhanced to the penalty of death.
9. To my humble observation as long as the abductee remained in the custody of the two Investigation Agencies she could not remain firm. For instance Muhammad Maroof, Inspector C.I.A.
Repeatedly produced her before different authorities from 4-9-1998 to 8-7-1998 with an effort to get her statement recorded in favour of the accused and thereby altering the case to that of a case of no evidence. On 4-7-1998 she was produced before E.A.C., Mansehra for recording her subsequent statement under section 164, Cr.P.C. This request was refused and thereafter, on the same day she was produced before Said Kamal Shah, Judicial Magistrate, IV, Mansehra for the aforesaid purpose but the learned Magistrate was conscious of his duties and he accordingly observed that since he had already recorded her statement under section 164, Cr.P.C. On 17-6-1998, therefore, the subsequent statement was not warranted by law. Lastly he produced the abductee before the Judicial Magistrate on 23-7-1998 with a request for the discharge of the accused under section 169, Cr.P.C. Yet once again his request was turned down by the Judicial Magistrate as the abductee in clear terms had confirmed the charge earlier brought by her before the Judicial Magistrate. She further alleged that her previous deviations were on account of the official pressure and she categorically admitted the correctness of her statement, dated 17-6-1998 recorded by this Officer, namely, Said Kamal Shah. The learned counsel for the complainant and the learned Assistant Advocate-General supported the impugned judgment. I have myself examined the record'and have observed that in the instant case the solitary statement of the abductee Mst.
Shahida Parveen recorded under section 164, Cr.P.C. On 17-6-1998 remains in the field so far. It is supported by the circumstances and the medical report which suggest that she had been badly and cruelly subjected to sexual lust against her wishes. The statement of the prosecutrix is further supported by the statements of the witnesses to her recovery, Miskin son of Ghulam Haider and Miskin son of Akbar Ali and Mst. Munawar corroborated by her medical report which suggest that a gang rape had been committed on her. It is now the duty of the trial Court to evaluate and appreciate the evidence at the stage of the trial. Granting bail to the accused-person in such heinous crimes on technicalities would increase the crime rate in the society to a point of no return.
In view of the changed circumstances and the trend of the superior Court in the light of the Islamic concept of law I feel that a prima facie case has been made out against the petitioners and I decline to enlarge the petitioners on bail. Their petition is, therefore, dismissed. My abovementioned observations shall not prejudice the mind of the trial Court. However, the trial Court is directed to expedite the trial of the accused-petitioners and conclude the same within six months from the passing of this order failing which the petitioners shall be at liberty to bring a fresh bail application.