' This is an application for grant of post arrest bail in case F.I.R. No,222 dated 10-9-2002 registered under sections 328/ 419/109, P.P:C. At Police Station Margalla Islamabad.
2. This F.I.R. Was registered on the complaint of one Ghafar Ahmed Satti against the petitioner and other co-accused upon the allegation that on the night of 2nd/3rd November, 2002 with mutual consultation abandoned the of newly born male child of the complainant after the petitioner gave birth to the child.
3. Prior to the registration of this F.I.R., case F.I.R. No,126 was registered on 11-11-2002 upon the complaint of Abdul Lateef father of the petitioner, wherein, it was alleged that Abdul Ghafar son of Muhammad Ishaq and Bashir Ahmed son of Muhammad Razaq accosted Mst. Nazia Lateef petitioner when she was returning from the Marjan Public School and after taking the petitioner to a low lying area of the Jungle was subjected to Zina-bil-Jabr by said Abdul Ghafar. The petitioner became pregnant but concealed the same from her parents on account of threats extended by the accused. On 10-11-2002 the petitioner was taken to a hospital by said Abdul Ghafar where she gave birth to a male child who was handed over to Abdul Ghafar to a women who was accompanying him. The petitioner was made to return home. However, she suffered from some medical complications, upon the knowledge of which the F.I.R. Was got registered by the father of the petitioner.
4: Mr. Munir Ahmed Kiani, Advocate for petitioner submits that this is clearly a case of two counter- versions. He submits that although the birth of the child is not disputed, the F.I.R. Lodged on 11-11- 2002 by the father of the petitioner discloses the correct version of the petitioner. He submits that counter F.I.R. No,222 filed against the petitioner by Abdul Ghafar suffers from an inordinate delay of almost 9/10 months. He further submits that the case as disclosed in the F.I.R. Is wholly baseless.
Out of six accused nominated in the F.I.R. The mother and father alongwith real paternal uncle his wife Mst. Imtiaz Begum and real maternal uncle of the petitioner were nominated. Pre-arrest bail was granted to the last mentioned three accused by the learned Sessions Judge, Islamabad while the petitioner and both her parents were refused the concession of such pre-arrest bail. The petitioner alongwith her father and mother applied for bail after arrest. Vide order dated 29-10- 2003 Abdul Lateef father and Mst. Hameeda Begum mother of the petitioner were allowed bail.. The application for post-arrest bail in respect of the petitioner was however, declined. According to him this would show that all co-accused of the petitioner have been enlarged on bail.
5. The learned counsel submits" that this is a case of further inquiry and that no case under the provisions of law Mentioned in the said F.I.R. Is made out against the petitioner.
6. Conversely, it is argued by the learned counsel for the complainant as well as the learned State Counsel that during the investigation marriage between the said Abdul Ghafar and the petitioner has been found to be established. He also submits that the petitioner filed a suit for jactitation of marriage which was dismissed by the learned Judge Family Court and against which an appeal is padding adjudication. The learned counsel for the complainant explains the delay on the ground that as the complainant Abdul Ghafar was arrested as a result of the F.I.R. Lodged by the father of the petitioner he could not file the subject F.I.R. Earlier. He further submitted that story of the prosecution as narrated in F.I.R. No,126 lodged by the father of the petitioner, wherein, it is alleged that the petitioner became pregnant on account of Zina-bil-Jabr committed by Abdul Ghafar is belied by the fact that it was not possible for the parent of the petitioner to have not noticed the pregnancy of the petitioner when they resided in the same house.
7. Arguments have been heard and record perused.
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12. The F.I.R. No,126 dated 11-11-2002 was filed by father of the petitioner, wherein, the allegations were made in detail. In a situation such as the present one it is quite improbable that a father would have invited the ridicule of the society against himself, and his family including the petitioner if indeed a regular Nikah had been solemnized between the petitioner and said Abdul Ghafar. It would indeed have been more probable for Abdul Lateef complainant of F.I.R. No,126 to subscribe to the version of Abdul Ghafar regarding marriage as that would have saved the family honour.
9. On the other hand, the version of Abdul Ghafar as disclosed in F.I.R. No,222 against the petitioner her parents and real maternal and real paternal relatives is concerned, no reasonable explanation for delay in lodging this F.I.R. Has been advanced by Abdul Ghafar complainant. The mere dismissal of the suit for jactitation would not be sufficient to infer that marriage between petitioner and Abdul Ghafar stood proved.
10. Without commenting upon the merits of the prosecution case as disclosed in either of two F.I.Rs,, suffice it to say that the petitioner has indeed been able to make out a case of further inquiry. All her co-accused have been granted pre-arrest or post-arrest bail and it is the petitioner alone who was declined this concession on the ground that she had given birth to the child. This factum is not disputed by the petitioner. However, what has to be determined is the veracity of the version of the complainant qua the counter-version of the petitioner.
11. In these circumstances the petitioner is allowed bail subject to furnishing of bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the trial Court.