Petitioner Khadim Hussain through the instant petition seeks post-arrest bail in case F.I.R. No.382 dated 5-7-2002, under section 16, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Police Station Saddar, Dera Ghazi Khan.
2. Briefly the prosecution case as contained in F.I.R. Is that on the night between 4/5-7-2002, he had taken away Mst. Aman Mai, the sister of the complainant on motorcycle for the purpose of Zina with her.
3. It has been contended on his behalf that he has falsely been roped in that neither he had taken nor entitled away the sister of the complainant that in fact her husband had kicked her out of the house and she had taken refuge in the house of her brother; that she had brought a suit for dissolution of marriage against her husband and the complainant suspected that he had hand in the same; that there is no direct evidence of Zina against him; that the offence under section 16, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) does not fall within the prohibitory clause of section 497(1), Cr.P.C.; that he is behind the bars for the last about four months; and that he is previous non-convict.
4. On the other hand, learned State Counsel has opposed the petition. However, he has conceded that the offence with which the petitioner has been charged does not fall within the prohibitory clause of section 497(1), Cr.P.C.
5. I have considered the submissions advanced by both sides with the help of available record.
6. Allegedly, he had taken away the sister of the complainant for the purpose of Zina. Admittedly, there is no direct evidence of Zina against him. It has been found that she during the investigation before the police has stated that they both had been committing Zina with each other. The fact that if her such statement before the police can be used against him or that if on the basis of the same, he can be convicted of the alleged offence. Hence his case is covered under subsection (2) of section 497, Cr.P.C. Requiring further inquiry to his guilt. Even otherwise, the offence under section 16, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) is not covered under section 497(1), Cr.P.C.
7. He is stated to be behind the bars for the last about four months and is previous non-convict. In these circumstances, I accept this petition and admit him to bail on his furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial Court.