1989 PLP 4930 (MLD)

Muhammad Riaz and Mahmand who have been named as accused in case F.I.R. No. 209/88 of Police Station Mamunkanjan under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 have moved Cr. Misc. No. 1864‑B/88 and Crl. Misc. No. 2670‑B/89 respectively for grant of bail. Since both the petitions pertain to the same case, they are being disposed of by a joint order.

2. It is stated in the F.I.R. that Riaz and Mahmand used to visit the house of the complainant who is father of the abductee in the case, being relatives. One morning, a few days before the occurrence, the complainant found his daughter Mst. Naikan missing. The two petitioners who had come to stay with him (the complainant) for the night, were also not there. He went out for search. The P.Ws. told him that they had seen Riaz petitioner taking away a lady, sitting on the back seat of bicycle while Mahmand petitioner was going with them on another bicycle. It is also mentioned in the F.I.R, that Mahmand had given the name of that lady to be Mst. Naikan. After making hectic efforts for recovery of the girl and utter disappointment on refusal of the accused party to return the girl, he lodged the F.I.R.

3. Mst. Naikan was recovered during investigation. In her statement during investigation she supported the claim of Riaz of having married him.

4. The Nikahnama was produced during investigation. However, the said Nikahnama was found to be forged one as neither the Nikah Khwan nor the attesting witnesses owned to have performed the Nikah and attested the same. As a result of that, Mst. Naikan was also arrested and challaned. She is, however, stated to have been released on bail.

5. Learned counsel appearing for Riaz petitioner contended that MSL Naikan was admittedly above 18/19 years and that, she, not only affirmed during investigation of having entered into Nikah with Riaz but also made no grievance of having been forced to enter into Nikah. Learned counsel submitted that even if Riaz petitioner has not been able to prove the Nikah, he may be allowed the concession of bail following the observation made by the Federal Shariat Court in Muhammad Yusuf and another vs. The State (PLD 1988 F.S.C. 22).

6. Learned counsel for Mahmand petitioner contended that although Mahmand is named in the F.I.R. to have been seen going alongwith Riaz on his bicycle but no allegation was levelled against him throughout the investigation of having committed Zina with the abductee or having done anything else untoward.

7. The contention of learned counsel that he was found innocent during the investigation and his name was placed in column No. 2 of the challan, as a result of the investigation conducted by a D.S.P. and S.H.O. has also not been controverted by the S.I. who is present with record. It is stated that he has been challaned as a result of legal opinion given by the P.D.S.P.

8. The facts of the case cited by learned counsel for Riaz petitioner are quite different from the one in hand. In that case the appellants who had been convicted even on the prosecution having failed to prove the case merely on account of their having failed to prove the Nikah as propounded by them, were acquitted. But in the case in hand the claim made by the petitioner has been found to be false as a result of the investigation. It can also not be held at this stage that the prosecution has failed to prove the case. In the circumstances, I find no merit in the petition for bail filed on behalf of Riaz. The same stands dismissed.

9. The petition qua Mahmand petitioner is, however, allowed, considering C the fact that no allegation of Zina has been levelled against him and also for the reason that he was found innocent during the investigation. He shall be released on bail, provided he furnishes bail bond in the sum of Rs. twenty thousand with one surety in the like amount to the satisfaction of the Assistant Commissioner, Samundri. SA./M‑1677/L Order accordingly.