' This application has been moved by petitioner Rahimdad son of Maroo Mian, caste Gujar, resident of Charan, Tehsil Ellai, District Battagram, who is seeking bail in case F.I.R. No,278 for offence under sections 6/10 and 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Earlier his bail application was rejected by the learned Additional Sessions Judge, Mansehra on 3-3-1998.
Feeling aggrieved he has preferred the present petition.
2. The facts of the case are that on 13-11-1997 at about 10-30 a.m. F.I.R. No,278 was registered in Police Station Oghi on the report of Abdur Rehman complainant, who is the brother of the abductee namely Mst. Hajira Bibi to the effect that his sister namely Mst. Zaitoon had been married to Rahim Dad the present petitioner, who had died 8/9 years ago. He alleged in his report that on the night of occurrence i,e, 11-11-1997 at about 10-00 p.m. He alongwith his , mother Mst. Zarin Jan, his sister Bibi Hajira the alleged abductee aged about 15/16 years and his younger brother and sister were asleep in their house when at 10-30 p.m. Rahim Dad petitioner alongwith three other persons entered their Kotha where an electric bulb was on. Rahimdad was armed with a rifle while his companions had Lathis. The petitioner namely Rahimdad caught hold of his sister Mst. Hajira Bibi and dragged her out of the Kotha. On his intervention and that of his mother the petitioner gave him butt blows of his rifle on his back and thigh and his companions attacked him with the Lathis.
In report he alleged that the petitioner had taken his sister forcibly get her married to him and for the purpose of Zina. Since it was dark the culprits escaped and according to the complainant his father was not present in the house, therefore, on the following morning he left for Baffa Maira where he informed him thereafter, he made the report. The motive for the occurrence was that after the death of his sister Mst. Zaitoon, Rahimdad was on visiting terms to their house and he was demanding the hands of Mst. Hajira Bibi in marriage but her father was reluctant. Hence the present occurrence. The delay in the report was explained by him that after consulting his father he had made the report after two days of the incident. The local police carried out investigation and consequently the abdcutee Mst. Hajira Bibi was recovered on 23-11-1997 from the house of Zarin at the pointation of the uncle of the abductee namely Wazir. After the recovery of the abductee she was medically examined on the same day and the Female Medical Officer, Civil Hospital Oghi opined that the hymen of the abdcutee was absent and the vigine admitted one finger. Besides, the vigine was bruised positively. Three viginal swabs were taken into possession and were sent to the Chemical Examiner but the result of the same is not available on the file.
3. I have heard the learned counsel for the parties and have gone through the record.
4. It is a case in which a direct charge has been brought against the petitioner by Abdur Rehman complainant who is the brother of his previous wife and the identity of the petitioner was well- known to him. The learned counsel for the petitioner argued that a belated charge had been brought against the petitioner with mala fides intention and that no Zina had been committed with the abductee because her vigina only admitted one finger. The learned counsel for the State repelled the arguments of the learned counsel for the petitioner and contested the petition.
5. The record suggests that charge brought against the petitioner has been fully supported by the facts that the abductee was recovered from the possession of the accused-respondent from the house of one Zarin on 23-11-1997 after a delay of about 12 days. The recovery is fully corroborated by the evidence available on the file i,e, the statement of Wazir and the two recovery witnesses Makhdoom Shah, A.S.-I. And Khalil-ur-Rehman, A.S.-I., supported by the medical evidence. Besides in such like statement it is the statement of the abdcutee alone which is sufficient to be appreciated.
6. In the instant case the abductee was produced before the Magistrate on 24-11-1997 where her statement under section 164, Cr.P.C. Was recorded. In the aforesaid statement she has supported the allegations of the first information report in toto and has charged the present petitioner for the offence of Zina-bilJabr with her. Ks such prima facie case appears against the petitioner and I feel that he is not entitled to the concession of bail. His application is rejected.
7. However, challan in the case has already been submitted and the petitioner is in the judicial lock-up ever since 23-11-1997. The prosecution agency is directed to submit the challan in Court and the trial Court shall conclude the trial within four months positively failing which the petitioner will be at liberty to bring a fresh application for bail. Copy of this order shall be sent to the trial Court and P.D.S.P. Concerned for compliance. The record shall also be sent immediately to the quarter concerned.