2008 PLP 485 (MLD)

AMIR HANI MUSLIM, J.

The applicant is facing trial in Crime No. 10 of 2006 along with another co-accused who is absconding, which was registered at Police Station Digri under sections 11 and 16 Zina Hudood Ordinance read with sections 342 & 34, P.P.C. This case has chequered history. The record reveals that the incident took place on 17-1-2006 whereas the F.I.R. was lodged on 17-2-2006 against the applicant and his brother. In the F.I.R. it was alleged that Mst. Zubaida was kidnapped by the applicant, his brother and two other persons and rape was committed upon her by the applicant and his brother. Mst. Zubaida remained with the applicant for more than 20 days after her marriage as claimed by the applicant. Thereafter, on intervention of the notable people, the applicant brought back Mst. Zubaida and handed over her custody to the notable who had handed over her custody to the complainant, father of the applicant. Since then Mst. Zubaida is living with her father. It appears that after the custody was handed over and as it is alleged that the custody was handed over with understanding that custody of Mst. Zubaida would be formally given to the applicant. The complainant backed out and thereafter applicant claims that he has filed proceedings against the complainant inter alia on the ground that Mst. Zubaida has been wrongly detained by the complainant. The notices were issued by Sessions Judge before whom the proceedings were pending. It appears that these proceedings were initiated on 2-2-2006 and thereafter F.I.R. against the applicant was lodged on 17-2-2006. The applicant's counsel claims that the applicant could not appear before the Sessions Court after the filing of the proceedings under section 491, Cr.P.C. on account of the present F.I.R. and it is further claimed that Mst. Zubaida was never produced before the Court and instead some other lady was produced and the applicant did not have the opportunity to confront Mst. Zubaida during the proceedings under section 491, Cr.P.C. It is claimed that the statement of Mst. Zubaida was recorded by Court on the back of the applicant and therefore such statement cannot be used against the applicant. Subsequent thereto the proceedings under section 491, Cr.P.C. were disposed of and applicant filed a family suit against Mst. Zubaida for conjugal rights before Civil Judge Digri on 28-4-2006. In the said suit, the written statement has been filed by the father of Mst. Zubaida in which the allegation of rape has not been pleaded. The applicant was arrested on 1-5-2006 after the family suit was filed by the applicant. On 30-5-2006 the complainant, the father of Mst. Zubaida has also filed family suit for jactitation of marriage in the Court of Civil Judge Badin. Even pleadings in this suit were not in conformity which the allegations with the complainant has levelled against the applicant and his brother in F.I.R. No.10 of 2006. This suit is contested by the applicant. The learned counsel for the applicant has submitted that the applicant has married to Mst. Zubaida and has relied upon Nikahnama and affidavit of the victim. He further contended that there is delay of one month in lodging the F.I.R. which delay was unexplained. His next contention was that both the parties have filed family suits against each other which are pending before the Family Courts and the applicant is in jail since 1-5-2006. The matter has not proceeded before the trial Court after the charge was framed and he submits that this is a fit case where the Criminal Courts cannot take cognizance as admittedly the parties have approached the Family Courts for seeking findings on the validity or otherwise of the Nikahnama. As against this, the learned counsel for the complainant has submitted that the statement of victim Mst. Zubaida has been recorded before the Sessions Court. Nikahnama has been disputed by her. According to him rape was committed upon her daughter by the applicant and his brother and the applicant is not entitled to bail. He has relied upon the case-law in support of his contentions which are reported in 1994 MLD 1298 and 2004 SCMR 244 and whereas the counsel for applicant has cited PLD 2004 SC

219. The learned Assistant' Advocate-General opposes the bail application on the ground that applicant has made the application prior to this and has not complied with the orders of this Court which were passed in earlier bail application. I have heard the learned counsel and have perused the record. In the earlier bail application, it was observed by this Court that Civil Judge will dispose of the family suit within stipulated time. The applicant was not required to comply with any order. It was the finding which was to be given by the Civil Judge. As far as the controversy in the case is concerned, I have gone through the order passed by Honourable Judge in the previous bail application and his attention was never brought to the judgment of the Division Bench of this Court comprising of Mr. Justice Zia Parwez and myself at Larkana. I have authored the said judgment, in which it was held that unless the party objecting the Nikah seeks decree from the Family Court that the Nikah with the rival party is invalid, the Criminal Court cannot held such party guilty. Cognizance of Criminal Courts is subject to the findings of the Family Courts. In the present matter, admittedly both the Family Courts have taken cognizance on the suits filed by the parties in which one party disputes the validity of Nikahnama whereas the other party is relying upon the Nikahnama. Unless the Family Courts give finding. I am of the considered view that the trial Court in exercise of Criminal Jurisdiction cannot decide the guilt or otherwise of the applicant. Under the criminal law, the courts have no authority to give any finding on the validity of Nikah which is the material issue in the case. It is the domain of the Family Court, which under the law is the competent to give finding on such issues. This aspect has not been brought to the notice of the Honourable Judge who has passed the orders while disposing of the previous bail application. Therefore, any observation made in the earlier bail order cannot come in the way of the applicant in the present case. As far as the merits of the case are concerned, the allegations contained in the F.I.A. have not been incorporated in the pleadings either by Mst. Zubaida or by her father when the family suit was filed by her or when the written statement was filed. Additionally, there is no explanation as to why the F.I.R. was not lodged promptly after the custody of Mst. Zubaida was handed over to the complainant. All these factors create doubt and in such circumstances it is a case of further inquiry. The learned counsel for complainant has cited the aforesaid cases which are distinguishable on facts. The fact of the case in hand is distinct. Under these circumstances and for the reasons stated hereinabove, the applicant is entitled to bail subject to his furnishing surety in the sum of Rs.100,000, (Rupees one hundred thousand) with P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./I-98/K Bail granted.