2006 PLP 2344 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Petitioner was refused post-arrest bail by the learned Additional Sessions, Judge, on 28-11-2005, in case against him vide F.I.R. No.613, dated 29-7-2004, under sections 10/11/15 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 365/109, P.P.C. registered with Police Station Civil Lines, Gujrat. He has now filed this instant petition for the same relief.

2. Gravamen of the charge as it appears from the F.I.R. is that on 20-7-2004 at about 11-00 a.m. the petitioner deceitfully abducted Mst. Sidrah Ijaz, of the age of 11 years' and 6 months along with her mother Mst. Safia and took them to some unknown place for commission of Zina with Mst. Sidrah Ijaz. It was further alleged by the complainant that the petitioner in connivance with Qari Muhammad Akram and Abdur Rauf his co-accused forcibly obtained the signatures of Mst. Sidrah Ijaz, on gun-point and fabricated Nikahnama by getting signatures of other witnesses by force. The petitioner was arrested on 25-7-2005 and after remaining on physical remand has since been remitted to judicial lock-up.

3. The learned counsel for the petitioner submitted that the petitioner is absolutely innocent and has been involved in a false case out of family dispute and enmity animosity of the complainant. It was further submitted that Mst. Sidrah Ijaz, the alleged abductee, is a major/sui juris girl, who was given in marriage to the petitionerby her real father, who also signed the Nikahnama dated 28-6-2004 but complainant who is brother of Mst. Sidrah Ijaz is not a man of good character who unauthorizedly got criminal case, registered in presence of real father of the alleged abductee. It was further emphasized that the complainant has manoeuverd institution of a fake suit on behalf of Mst. Sidrah Ijaz for jactitation of her "Nikah" whereas the petitioner has also filed a suit for restitution of conjugal rights and since validity of petitioner's marriage is sub judice before the learned Judge Family Court, criminal proceedings in hand, could not proceed hence were stayed by this Court in Writ Petition No.11221 of 2005. According to the learned counsel for the petitioner, the petitioner though has committed no cognizable offence yet his case is that of further inquiry and he cannot be detained for indefinite period.

4. Bail was opposed with the arguments that the petitioner committed heinous offence by enticing away a minor girl and then by entering into a tie of marriage with her by getting forced signatures of the claimed bride and of those of the witnesses. It was further submitted that the alleged marriage being void, the petitioner is not entitled to concession of bail as the offence charged is covered by prohibitory clause of section 497, Cr.P.C.

5. I have heard the learned counsel for the parties and have examined the police record. No doubt validity or otherwise of the Nikah will be determined by the learned Judge Family Court, cognizant of the two suits by the parties, one for jactitation of marriage and the other for restitution of conjugal rights bur prima facie, father of the alleged abductee namely Ijaz Ahmad Chaudhry son of Sarfaraz got the Nikah performed and signed on the Nikahnama which was duly registered on 28-6-2004. Prosecution has not collected any evidence to the effect that Mst. Sidrah Ijaz was minor at the time of Nikah yet, the same having been performed through "Wali/real father, thus, makes out a case of further inquiry. Nikahnama has been signed by close relations of the bride and it is not probable that each of them was forced to sign it on gun point. Complainant has not disclosed his locus standi to get the criminal case registered in presence/lifetime of his real father. Proceedings in the criminal case against the petitioner (F.I.R. No.613 dated 29-7-2005) have been made subject to the A final result by the Family Court cognizant of the above two suits by this Court in Writ Petition No.11221 of 2005. The petitioner has already suffered detention of about five months. In spite of arrest on 25-7-2005, and besides submission of challan of the case on 2-8-2005, trial has not commenced and there is no chance of its conclusion in the near future. Person of the petitioner is no more required for the purpose of investigation. His further detention would not advance the prosecution case, any more. Bail is not to be withheld as of punishment, especially, when there is no allegation of abscondance or tampering with prosecution evidence by the petitioner. He will face the sentence if ultimately convicted by the trial Court, at the conclusion of the trial.

6. For the reasons noted above, the petitioner had made out a case for his post-arrest bail in the case registered against him, pending its trial. This petition is accordingly allowed and I petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the trial Court. H.B.T./M-281/L????????????????????????????????????????????????????????????????????????????????? Bail granted.