2006 PLP 1768 (MLD)

SYED SAKHI HUSSAIN BUKHARI, J.

This order shall dispose of Criminal Miscellaneous No.8015-B of 2005 and Criminal Miscellaneous No.8012-B/2005 as both these applications relate to same case (F.I.R. No.592 of 2005, dated 8-10-2005 registered at Police Station Gujjar Pura, Lahore).

2. Mst. Zubaida Bibi and Rustam Ali have applied for pre-arrest bail whereas Yasin, Babar and Ali Ahmad (petitioners in Criminal Miscellaneous No.8012-B of 2005) have applied for post-arrest bail in case F.I.R. No.592 of 2005, dated 8-10-2005 under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 P.P.C. registered at Police Station Gujjar Pura, Lahore.

3. The brief facts of the case are that on 8-10-2005 Ghulam Hussain submitted application before police that on 7-10-2005 his daughter Sana Bibi went to the mosque for offering prayer but she did not come back. He further stated that Abdul Ghafoor and Faryad Ali told him that they had seen Sana Bibi, Mst. Zubaida Bibi, Yasin, Rustam Ali and two unknown persons going towards Bund Road in a rickshaw. The complainant stated that Rustam Ali etc. have abducted his daughter. On his application present case was registered against the petitioners. Yasin, Babar and Ali Ahmad were arrested on 11-10-2005. Hence these applications.

4. I have heard the arguments and perused the record.

5. Learned counsel for the petitioners submits that petitioners have been falsely implicated in this case. Further submits that Sana Bibi (complainant's daughter) has contracted marriage with Rustam Ali son of Yasin (petitioner) on 24-9-2005 with her free consent. He contended that according to prosecution case Sana Bibi is aged about 15 years and six months, therefore, she has attained puberty, hence she could contract marriage with Rustam Ali (petitioner). He further contended that in her statement under section 164, Cr.P.C. Sana Bibi clearly stated that none has abducted her and she has contracted marriage with Rustam Ali on 24-9-2005, therefore, no offence under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is made out against the petitioners, therefore, they deserve concession of bail. He has relied upon Mst. Zeenat Bibi and another v. The State and 2 others (2005 PCr.LJ 1312) and Abdul Ghaffar v. Ishtiaq Ahmad Khan and another (1997 PCr.LJ 1150) ;

6. On the other hand learned counsel for the State as well as complainant have opposed these applications on the grounds that Mst. Sana Bibi is minor as she is aged about 15 years and six months and that `Nikahnarna' dated 24-9-2005 is doubtful.

7. I have considered the submissions made by learned counsel for the parties with care. As mentioned above the allegation against the petitioners is that on 7-10-2005. They abducted Sana Bibi (complainant's daughter). The case of petitioners is that Sana Bibi has contracted marriage with Rustam Ali, petitioner. According to F.I.R. Sana Bibi is aged about 15 years. Liaqat, S.-I./IO who is present in Court along with record states that according to school leaving certificate produced by complainant, Sana Bibi is aged about 15/1/2 years. She (Sana Bibi) is present in Court and states that she has contracted marriage with Rustam Ali (petitioner) with her free consent and she wants to live with him. Section 251 of Mohammedan Law reads as under:-- "Capacity for marriage

(1) Every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. (3) A marriage of Muslim who is of sound mind and has attained puberty, is void, if it is brought about without his consent. Explanation. Puberty is presumed, in the absence of evidence, on completion of the age fifteen years. As mentioned above Sana Bibi is aged about 15/1/2 years hence she has attained puberty. Liaqat S.-I. states that during investigation `Nikahanama' dated 24-9-2005 was found to be correct. The petitioners (Yasin; Ali Ahmad and Babar) are in judicial lock-up since 11-10-2005. Mst. Zubaida Bibi (petitioner) is mother and Yasin (petitioner) is father of Rustam Ali. Liaqat, S.-I. states that Rustam Ali and Mst. Zubaida Bibi are not required by the police for further investigation. As mentioned earlier Sana Bibi states that she has contracted marriage with Rustam Ali with her free consent. In these circumstances I find it a fit case for grant of bail to the petitioners. As such both these applications are accepted and Yasin, Babar and Ali Ahmad (petitioners in Criminal Miscellaneous No.8012-B-2005) are allowed bail in the sum of Rs. 80,000 (rupees eighty thousand) each with one surety each in the like amount to the satisfaction of learned Trial Court. The bail already granted to Mst. Zubaida Bibi and Rustam Ali is confirmed. However they are directed to furnish fresh bail bonds in the sum of Rs.80,000 (rupees eighty thousand only) each with one surety each in the like amount to the satisfaction of learned Trial Court within 10 days, failing which bail granted to them shall stand cancelled. However observations made in this order would not prejudice case of either party during trial. H.B.T./Z-38/L Bail granted.