2001 P Cr (PLP)

Abdullah Jan Mirza for Respondent No.2 Aurangzeb Moghal for the State. Date of hearing: 19th January, 2001. Complainant Aurangzeb made a report on 16‑9‑2000 at Police Station, Saddar, Haripur, stating therein that about a year and two months prior to the report the Nikah of Mst. Farkhanda Bibi (19/20) daughter of Munsif Dad was recited with him at Mardan but Rukhsati had not taken place. Subsequently, his father‑in‑law shifted to Haripur and started living at Naggar‑cum‑Alooli District Haripur. On the morning of 4‑9‑2000 at about 7 p.m. Mst. Farkhanda Bibi left for Fauji Foundation School Haripur with Bashir Ahmad and did not return back. On inquiry, it transpired that Bashir Ahmad has contracted marriage with Mst. Farkhanda Bibi after eloping and they are living as husband and Wife.

2. During investigation of the case, Bashir Ahmad and Mst. Farkhanda Bibi were arrested by the local police. Mst. Farkhanda Bibi denied her Nikah with complainant Aurangzeb and claimed to have contracted valid marriage with Bashir Ahmad on 4‑5‑2000 of her own accord. She also denied having signed the Nikah Nama with Aurangzeb, dated 10‑7‑1999.

3. Resultantly, Bashir Ahmad and Mst. Farkhanda were charged under sections 11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No.257, dated 16‑9‑2000 registered at Police Station, Saddar Haripur at the behest of complainant Aurangzeb. Bashir Ahmad and Mst. Farkhanda, respondents herein, moved an application before the Judicial Magistrate, Haripur for grant of bail which was rejected. However, they were released on bail by the Court of Sessions Judge, Haripur through order, dated 1‑11‑2000, with a condition that sureties of Mst. Farkhanda Bibi shall be Mehrams and from the prohibited degree in her relation subject to her consent and they shall further give an undertaking to the effect that cohabitation between Mst. Farkhanda Bibi and Bashir Ahmad shall not be permitted till disposal of the case or otherwise.

4. Aurangzeb, feeling aggrieved, has moved instant application seeking cancellation of bail granted to the respondents per the impugned order, dated I‑11‑2000 whereas Mst. Farkhanda Bibi has tiled an application under section 561‑A, Cr.P.C. for deletion of condition, attached to the grant of bail to the petitioner. This order is.proposed to dispose of both the matters.

5. I have heard Mr. Abdullah Jan Mirza, Advocate for Mst. Farkhanda B‑ibi and Mr. Saeed Akhtar, Advocate for Aurangzeb. I have also heard Mr. Aurangzeb Mughal, Advocate for the State.

6. It is submitted by learned counsel for Mst. Farkhanda Bibi that the case is based on false allegations and that the lady being sui juris had voluntarily solemnized marriage with Bashir Ahmad of her own. It is further stated that she was not previously married to complainant Aurangzeb and the signature on the Nikah Nama dated 10‑7‑1999 was found forged by the Handwriting Expert and in this view of the matter the learned Sessions Judge had justifiable reason to admit Mst. Farkhanda Bibi and her husband Bashir Ahmad on bail but the learned Sessions Judge had no good reasons to attach conditions with the bail order concerning Mst. Farkhanda Bibi, which have materially prejudiced the rights of Mst. Farkhanda Bibi.

7. Learned counsel for the complainant on the other hand, prayed for cancellation of bail granted to Mst. Farkhanda Bibi and Basher Ahmad by the Court of Sessions and attempted to argue that in view of sufficient material on tile connecting Mst. Farkhanda Bibi contracting second marriage with Bashir Ahmad during subsistence of her Nikah with her cousin Aurangzeb complainant, the learned Sessions Judge was not justified to accept the application and release the respondents on bail. To substantiate the pleas, he placed reliance on cases reported in 1993 PCr.LJ 24.16 (Lahore), 1994 PCr.LJ 1494 (Lahore), 1997 PCr.LJ 878 (Lahore), 1984 PCr.LJ 160 SC (AJ&K) and 1997 SCMR 278.

8. Be that as it may, without touching the merits of the case, I find that Mst. Farkhanda Bibi is major and being sue juris was competent to enter into the contract of marriage with Bashir Ahmad vide Nikah Nama dated 4‑9‑2000. There is nothing on the tile to indicate that Bashir Ahmad had enticed away the girl for sinister purpose. In the circumstances, I find that no case for interference is made out. The application of Aurangzeb seeking cancellation of bail granted to Mst. Farkhanda Bibi and Bashir Ahmad fails which is hereby dismissed.

9. Adverting to the conditions attached with the bail order concerning Mst. Farkhanda Bibi I feel that the conditions are harsh and cannot be allowed to remain intact. The conditions besides, being violative to the terms of section 498, Cr.P.C. amount to virtual denial of the bail. It needs no reiteration that once an accused person is released on bail, he or she, as the case may be, is set at liberty with condition to appear before Court as and when required. The father and uncle of Mst. Farkhanda Bibi are unhappy over her marriage with Bashir Ahmad as it is against their wishes. Mst. Farkhanda Bibi is not willing to live with them as they have set the law in motion against her to, her detriment and interest. The petitioner in the absence of relatives in prohibitory degree is willing to furnish sureties held in high esteem by people of locality. The girl is legally entitled to live with Bashir Ahmad and no condition can be attached to such obligation, specially when Nikah set up by complainant is held invalid by the learned Sessions Judge. Any embargo on liberty of petitioner is void and without lawful authority and cannot be allowed to remain intact. The application moved under section 561‑A, Cr.P.C. succeeds and the conditions attached are deleted as desired. N.H.Q./252/P Order accordingly.