1994 P Cr (PLP)

Sardar Sulaiman Khan, Addl. A.-G. for the State. Sardar Eijaz Afzal Khan for the Complainant.. The above titled revision petition is directed against an order of District Court of Criminal Jurisdiction Poonch passed on April 23, 1994 whereby the order passed on the bail application of the petitioner by the Tehsil Court of Criminal Jurisdiction Poonch on July 4, 1994 was maintained.

2. The facts forming background of the present petition briefly stated are that complainant, Ali Akbar who is the father of the petitioner lodged a written report with S.H.O., Police Station Rawalakot on the basis of which a case under section 10/11 and 16/19, Enforcement of Hudood (Zina) Act was registered against five persons. However, after the completion of investigation a challan was submitted against three accused persons, including the accused petitioner herein. The accused-petitioner moved an application before the Tehsil Court of Criminal Jurisdiction, Rawalakot on April 2, 1994 for her release on bail. The application was allowed, subject to the condition that she A be released on the surety of a "Mehram". Feeling dissatisfied with the aforesaid order, she challenged the same before the District Court of Criminal Jurisdiction, Rawalakot through an appeal which was dismissed, vide order under revision.

3. Sardar Tahir Anwar Khan, the learned counsel for the petitioner argued that in the peculiar circumstances of the case, the condition of a "Mehram" is against the norms of justice because no person within the prohibited degree enjoys the confidence of the female accused-petitioner. According to him, all of her relatives have joined hands against her and are responsible in getting a false case registered against her. He further contended that accused-petitioner has contracted her marriage with co-accused, Aurangzeb out of her own free will as such all of her relative within the prohibited digree are against her and they are all out to damage her. He further contended that in the challan case, statements of the accused-persons under section 242, Cr.P.C. have been recorded wherein the accused-petitioner has denied the charge levelted against her and has stated that she is the wife of Aurangzeb as such has committed no offence as alleged against her.

4. On the other hand, the learned Additional Advocate-General as well as the learned counsei representing the complainant in this case, argued that the impugned orders are in accordance with law relating to bail matters as laid down by the Shariat Court and Supreme Court of Azad Jammu and Kashmir. They also placed reliance on

5. I have considered the respective submissions of the learned counselfor the parties and have very carefully perused the record of the case.

6. The case-law which was cited by the learned counsel for the parties is distinguishable and has got no relevancy with the facts of the instant case. In this case, in the light of the documents available on record, on December 26, 1993 the statement of the accused-petitioner was recorded by Sub Judge/M.I.C. Pallandari wherein she stated that she wanted to contract her marriage with Aurangzeb out of her own free will but her father and uncle Wazir and her cousin Mahboob were against this marriage and now they were all out to damage her. She also deposed that she apprehends some foul play on their part. It is also admitted by the precaution that she subsequently contracted her marriage with Aurangzeb accused on December 28, 1993. After her arrest she was produced before Lady Doctor who opined that she was above 16 years of age and further that intercourse was committed with her within last six days. This report was given by her on January 5, 1994. This ' shows that apparently in the light of this report, the spouses enjoyed their sex after they contracted the marriage with each other. In this case, admittedly no accusation has been levelled against the female accused-petitioner that previously she was married to any other person. I think, as she was adult, therefore, was legally competent to contract marriage with any person of her choice including Aurangzeb. In this case, as stated earlier, she contracted marriage with Aurangzeb and the police has recorded the statement of "Nikahkhawan" who has solemnized the marriage and other witnesses of Nikah who have supported the version that they were present in the Nikah ceremony of the accused-petitioner with Aurangzeb. In my opinion, she, in the circumstances of the case, has committed no offence. Therefore, the proceedings in the challan case pending against her are the abuse of the process of the Court. She has already been kept in judicial lock-up for a pretty long time without any lawful justification.

7. For doing real and substantial justice. very wide inherent powers are available to this Court under section 561-A, Cr.P.C. therefore, in exercise of the powers available to this Court, under section 561-A, Cr.P.C. I quash the proceedings of the case registered vide F.I.R. No.244/93, dated December 22/23, 1993, pending through challan before the Tehsil Court of Criminal Jurisdiction, Poonch-Rawalakot against the accused persons and acquit all of them including the petitioner, Mst. Nasrin Akhtar The revision petition stands disposed of accordingly. Mst. Nasrin Akhtar shall be released from the custody forthwith. N.H.Q./6/Sh.CA. Order accordingly.