1. ' Applicants have sought bail in case registered at Police StationJamshoro for an offence punishable under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 377/511, P . P. C .
2. ' According to the F.I.R. The applicants reside at R.B.B. Colony, Jamshoro. On 12-6-2003 at 7-30 p.m.
3. Accused Kamran and Feroze came in a white car Khyber and asked the complainant to accompany them to Jamshoro Phatak for posting a letter. The complainant and the accused then drove towards Jamshoro Railway Crossing but when the car reached there they drove fast and proceeded towards University which the complainant objected but they told him that they were just having an outing but again they diverted towards Super Highway at about 9:15 p.m., they stopped the car on side of the road and accused Feroze forcibly untied the tape of the trouser of the complainant. They put off their trousers also and forcibly started committing unnatural offence with the complainant but he raised cries and succeeded in running away from there towards motorway police post. The accused also chased him but be took refuge with motorway pollee where the police officer Mumtaz and one Muhammad Khalil took out their vehicle and tried to chase the accused persons but the latter fled away in their car. The motorway policemen took the complainant to Police Station Jamshoro where the complainant lodged F.I.R. At 10-00 p.m.
4. ' I have heard Mr. Rasool Bux Palejo Advocate for applicants and Mr. Anwar H. Ansari for the State.
5. ' Mr. Palejo advanced the bail plea on the ground that basically the facts and circumstances do not make out the offence of abduction since the complainant had by consent boarded the car of accused persons, therefore, even if the allegations are taken true, section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance would not be attracted and the allegations at the most will constitute an offence of attempt to commit unnatural offence for which maximum punishment is 5 years. Secondly, the story suffers from improbabilities as it is hardly believable that, the culprits would select the venue of offence of sodomy at the super highway at some distance from a police post. Besides, the mother of victim has enmity with certain persons and the involvement of the applicants is backlash of the said animosity. In this behalf he relies on the, documents filed in support of his bail application. He cited the cases of Muhammad Tufail v. State (PLD 1984 Federal Shariat Court, 23), Shamas Saeed Ahmed Khan v. Shafaullah (1985 SCM R 1822), Muhammad Akhtar v. Muhammad Shafique (1986 SCM R 533), Shafaullah v. State (1984 PCr.LJ 3195), Abdul Ghaffar v.
6. State (1988 PCr.LJ 1446), Muhammad Saleem v. State (1985 PCr.LJ 240), Abdul Qayum v. State (1985 M LD 1319), Tariq Bashir v. State (PLD 1995 SC 34) in support of this contentions.
7. ' Learned State Counsel vehemently opposed the bail on the ground that there are two independent witnesses who were available at the motorway police post and have supported the version of complainant as such it is too early to discard the evidence of complainant and those witnesses.
8. ' The contention regarding lack of the essential element of abduction was emphatically pressed into service on the strength of following observations made in Shams Saeed Ahmed Khan's case (1985 SCM R 1822) which was also relied upon in 1986 SCM R 533.
9. "As regards the other charge, criminal liability under section 12 of the Ordinance, like other offences of the category, depends on the existence of the intention or reasonable knowledge of the person accused of the crime. If the intention be to kidnap or abduct for the specified purpose of kidnapping or abduction is coupled with the reasonable knowledge of the likelihood of the specified purpose then the offence will definitely fall under section 12 of the Ordinance. If, however, the intention be to commit the very act indicated as the purpose with no intention to commit kidnapping or abduction then merely because the victim was moved a few paces in terrorem or shoved along, for safe and unobtrusive achievement of the intended purpose will not make an additional offence under section 12 of the Ordinance".
10. ' Learned counsel for the applicants argued that the situation demonstrated in the F.I.R. And the statements of witnesses would hardly constitute the offence of abduction which is pre-requisite for application of section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. I would agree with the learned counsel that the predominant factor constituting the offence under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 would be the act of an accused who kidnaps or abducts any person in order that such person inter alia may be subjected, to the unnatural lust of any person or knowing it to he likely that the victim will be so subjected. The term 'abduction' has not been defined in express words in the Offence of Zina (Enforcement of Hudood)
11. Ordinance therefore support can be sought from the definition of abduction under section 362 P.P.C. Which reads as under:-- "362. Abduction. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person".
12. ' On the plain reading of the above provision of law read with the facts of the case, as alleged by the prosecution, the apparent inference that can tentatively be drawn is that the consent of the victim was obtained deceitfully for going upto Jamshoro Railway Crossing (Phatak) and when the car sped up towards University he raised objection; however, again with deceitful intention he was taken to different places and then to super highway where in the cover of darkness he was subjected to unnatural lust of the accused persons. In this view of the matter intricate points of fact are involved with respect to the essential ingredients of the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance. It is, at this stage, premature to discard the version of the complainant which on the face of it is supported by two independent witnesses Mumtaz and Khalil who were present at the Highway Post. I have not been able to persuade myself to agree with the learned counsel at this stage, before recording of some evidence, that the offence under section 12, Offence of Zina (Enforcement of Hudood) Ordinance is absolutely not made out. The case of Shams Saeed Ahmed Khan (1985 SCM R 1882), with due respects, appears to be of no help to applicant for the simple reason that the prosecution story indicates that the applicant took the victim right from beginning by deceitful means, tentatively speaking, for the intended offence to subject him to unnatural lust. In the cited case it is observed in the unequivocal terms that if the intention be to kidnap or abduct for the specified purpose of kindnapping or abduction coupled with the reasonable knowledge of the likelihood of the specified purpose then the offence will fall under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance. It is also not a case that the victim was taken ahead only for few paces, but he was driven all along for a considerable time upto 9-15 p.m.
13. As far the probability that the offence could not be committed at the road side of super highway, it may be observed that prima facie the cover of darkness was enough to counteract this contention.
14. With regard to the alleged enmity of the mother of the victim with certain person, it would be inappropriate to place implicit reliance on extraneous material and documentary evidence at bail stage, more particularly in absence of the persons involved therein.
15. The authorities cited by the learned counsel are on the whole not applicable at this stage, in view of the distinguishable facts and circumstances. However, while dismissing the application for bail it is directed that the trial Court shall examine at least the material witnesses namely the complainant and P.Ws. Khalil and Mumtaz within a period of two months of receipt of this order. After expiry of such period the applicants would be at liberty to approach the trial Court for bail in the light of grounds available at that time. The bail application is dismissed.