1. ' This bail applicatibn has been filed by applicant/accused Ali Bux Babar who' has to face his trial before the learned 4th Additional Sessions Judge, Dadu in Crime No,31 of 2002 of Police Station Khairpur Nathan Shah registered on 4-5-2002 under sections 11/16, Offence of Zina (Enforcement of Hudood Ordinance, 1979 read with sections 147, 148 and 149, P.P.C. At the instance of complainant Bashir Ahmad.
2. ' In his F.I.R., the complainant has stated that he is a primary teacher. Applicant/accused Ali Bux and others who are related to the complainant are residing near his house and they are on visiting terms with him. Mst. Shahzadi aged about 15/16 years is daughter of the complainant. On 10-2-2002 the complainant and other inmates of the house alongwith Mst. Shahzadi were sleeping in the house when at about 12-00 midnight time they heard some noise. The complainant and others woke up and saw, on the light of bulbs which were on persons namely Ali Bux with pistol, (2)
3. GhousIx with Lathi, (3) Muhammad Hassan with gun, (4) Ashiq with pistol and (5) Muhammad Younas with hatchet standing in the house. Ali Bux dragged Mst. Shahzadi by her arms outside the house. The complainant and others raised cries but all the accused threatened them to remain quite and silent. However, due to commotion Muhammad Abbas cousin of the complainant and Inayatullah nephew of the complainant also reached there. All the above-named accused went outside the house and forcibly took away Mst. Shahzadi on motorcycles. While going they issued further threats that if any complaint was made, the accused would kill the complainant side.
4. During the morning time the complainant went to his Nekmard Rais Kando Khan Babar and informed him about the incident. He showed his helplessness as the accused were not responding to his calls at any time. Complainant approached the relatives of the accused, who also kept him on false hopes. The F.I.R. Further shows that on 3-3-2002 when the complainant was available in his house, his daughter Mst. Shahzadi came back and disclosed that accused persons had taken her away to some unknown place where they kept her in a room and applicant/accused Ali Bux committed forcibly Zina with her and finding a chance to escape she had reached the house. She further stated that gold ornaments and money are there with the accused. On the next day viz. 4- 3-2002 the complainant stated to have made an application to District Police Officer, Dadu who forwarded the same to the concerned police station where his F.I.R. Was lodged.
5. ' Usual investigation was conducted by the police. Applicant was arrested on 6-3-2002 and challan was submitted on 20-3-2002. An application for bail was filed on behalf of the applicant/accused before the learned 4th Additional Sessions Judge, Dadu which has been rejected on 6-8-2002.
6. ' Mr. Abdul Rasool Abbasi, learned counsel for the applicant has argued that applicant/accused is innocent and he has been falsely implicated by the complainant due to dispute over matrimonial affairs. He has further argued that there is unexplained delay of 22 days in lodging of the F.I.R. And in fact Mst. Shahzadi had left the house of her parents on her own accord and contracted marriage with accused Ali Bakhsh with her consent and free-will. In support of this contention the learned counsel has placed on record a photostat copy of the Nikahnama showing Nikah between the applicant/accused and Mst. Shahzadi having been performed at Sanghar on 14-2-2002. A copy of affidavit sworn by Mst. Shahzadi before Judicial Magistrate and F.C.M., Sanghar on 14-2-2002 stating therein that she has been neither abducted nor enticed away by any person and has left the house of her father on her own as her parents were trying to give her in marriage to an old man against her wishes. A copy of daily Kawish, Hyderabad dated 19-2-2002 publishing the affidavit of Mst. Shahzadi on the same line has also been placed on record. The learned counsel has, therefore, vehemently urged that co-accused Ghous Bux was granted bail by this Court whereas another accused Muhammad Hassan has been granted bail by the trial Court. The learned counsel has, therefore, vehemently urged that this is a case calling for further inquiry. In support of his contentions he has placed reliance on a large number of cases that in such circumstances the case calls for further inquiry and the applicant deserves the concession of the bail.
7. ' Mr. Ali Azher Tunio, learned Assistant Advocate-General for the State has no objection to the grant of bail as according to him it is a case of further inquiry in view of the unexplained long delay in filing of the F.I.R. As well as. The affidavit of Mst. Shahzadi, Nikahnama between the applicant and Mst. Shahzadi and the publication of affidavit which appeared in daily Kawish, Hyderabad.
8. ' Mr. Altaf Hussain Surahio, learned counsel for the complainant has vehemently opposed to the grant of bail and argued that delay in such type of cases in our society is a usual thing as people try to recover the abductees through Nekmards and elders of the community. He has further argued that the abductee is 15/16 years of age. Swabs which were taken from her vagina are in positive. The learned counsel has further argued that in her statement recorded under section 164, Cr.P.C. Before Judicial Magistrate, Khairpur Nathan Shah on 7-3-2002 at the request of the police, Mst. Shahzadi has implicated the applicant/accused for her abduction, confinement in a room and keeping her unconscious after administering some intoxicant. She has stated that she was illegally and unlawfully detained for about 20 days and during that period Ali Bux and Ashique used to commit Zina with her and also maltreated her. Finding a change at an occasion she escaped from their custody and reached to the house of her pareths.
9. ' I have considered the arguments of the learned counsel for the applicant, learned counsel for the complainant and the learned A.A.-G. The incident is said to have taken place at about mid-night time on 10-2-2002 and report was lodged after about 22 days of the incident on 4-3-2002. There is no plausible explanation for such delay. Further, more, Mst. Shahzadi was produced before Judicial Magistrate K.N. Shah on 7-3-2002 about four days after her return to the house of her parents.
10. Prima facie, the chance of tutoring during this period cannot be overruled under the circumstances of the case. The affidavit of Mst. Shahzadi, her Nikahnama and publication of her affidavit in daily Kawish on 19-2-2002 coupled with the factum of delay in F.I.R. As well as producing Mst. A Shahzadi for her statement before a Magistrate on 7-3-2002 has made it a case of further inquiry. Under these circumstances I feel inclined to grant bail to the applicant in case he furnishes solvent surety in the sum of Rs,1,00,000 and P.R. Bond in the like amount to the satisfaction of trial Court.