2003 PLP 2361 (YLR)

Mian Muhammad Bashir, A.A.-G. with Mirza Nadeem Asif for the State. Nazir Ahmed Chaudhry for the Complainant. This application for bail after arrest has been filed on behalf of Muhammad Irfan son of Muhammad Iqbal who is involved in a case arising out of F.I.R. No.37 of 2002 registered on 28-1-2002 in Police Station City, Ahmedpur East under sections 10(2) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The F.I.R. was lodged by one Muhammad Yousaf stating therein that his daughter Mst. Abida Yousaf aged 20 years was a school teacher. Her 'Nikah' was performed with one Nazir Ahmed son of Muhammad Yousaf on 5-10-2001 but 'Rukhsati' had not taken place. His 'Mohallahdar' Irfan used to visit his house (the house of the complainant) and he was having an evil eye on his daughter. Subsequently he came to know about their illicit relations and he forbade Irfan from visiting his house. He continued meeting her secretly and used to send messages to her through his sister Mst. Humera Bibi. On 10-1-2002 his daughter went to a private school for teaching but did not return. He searched for her and on the next day Muhammad Ramzan and Mukhtar Ahmed P.Ws. told him that they had seen Irfan and his daughter in a car going towards ' Chacha Basti'. The complainant alongwith P.Ws. went to Muhammad Iqbal, the father of Irfan and who admitted the mistake of his son and requested them to allow time to them and promised to get restored his daughter. But since then-he had not restored his daughter. It was alleged by the complainant that his daughter had been abducted by Irfan accused with the intention to commit 'Zina'. While leaving, his daughter had also taken along ornaments weighing 5 Tolas. The complainant had come to know that Imran etc. had also been facilitating his co accused in the commission of the offence. Thus the complainant reported the matter to the Police.

3. Arguments have been heard and record perused.

4. The learned counsel for the petitioner has taken the plea that Mst. Abida Yousaf had not been abducted by anyone and that in fact she is a legally wedded wife of the petitioner and that her alleged 'Nikah' with one Nazir Ahmad, a mention of which has been made in F.I.R., is totally fictitious and the signatures of Mst. Abida Yousaf on the said 'Nikahnama' are also forged. He has pointed out that in Chak No.47/DNB where the aforesaid 'Nikah' is stated to have been registered is not the home town of either the bride or the bridegroom nor the complainant belongs to the said village. He has argued that even the father or grandfather of the complainant or any of their relatives do not own property nor reside in the said village. He has asserted that in collusion with the. 'Nikah Registrar' of Chak No.47/DNB, a forged 'Nikahnama' had been prepared so as to be able to assert that Mst. Abida Yousaf was married with Nazir Ahmed. He has also argued that as soon as she came to know about her fictitious ' Nikah' with Nazir Ahmed. Mst. Abida Yousaf had filed a suit for jactitation of marriage in the Court of the learned Judge Family Court, Ahmedpur East. He has further argued that it is the Family Court which has to ultimately decide the validity of 'Nikah' or the question of existence of marriage or otherwise. Relying on PLD 2001 SC 219, he has argued that no offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was made out When the alleged abductee was a sui juris and had contracted 'Nikah' with the co-accused according to the Muslim Law. On the basis of the same authority he has argued that a male or female who has attained puberty is at liberty to marry anyone she or he likes and the guardian has no right to interfere.

5. The learned counsel for complainant has resisted the application.

6. There is no denying the fact that the abductee is a sui juris. It is also an admitted fact that Mst. Abida Yousaf, the alleged abductee has filed a suit for jactitation of marriage against Nazir Ahmed which is pending before the learned Judge Family Court, Ahmedpur East. It also appears from record that the petitioner had got her statement recorded under section 164, Cr. P. C. in the Court of the learned ' Ilaqa' Magistrate on 21-2-2002 and wherein she had stated that she wanted to marry Muhammad Irfan with her free consent. It has also been pointed out that Mst. Abida Yousaf had earlier filed a writ petition for the quashment of F.I.R and which is still pending.

7. In view of the fact that the abductee is an educated lady and is a sui juris and claims to have married the petitioner with her consent and in view of the fact that she had made a statement under section 164, Cr.P.C. in the Court of the learned 'Illaqa' Magistrate on 21-2-2002 and also in view of the fact that a suit for jactitation of marriage filed by her against Nazir Ahmed is pending in the Court of the learned Judge Family Court, it is clearly a case of further enquiry and, thus the petitioner i.e. Muhammad Irfan is entitled to the concession of bail. Therefore, the bail application is accepted and the petitioner is admitted to bail in the sum of Rs.1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./M-1937/L Bail granted