2006 PLP 2957 (YLR)

IJAZ AHMAD CHAUDHRY, J.--Through this application under section 498, Cr.P.C. the petitioners seek bail before arrest in case F.I.R. No. 316 dated 29-10-2004 registered under sections 11/10 of Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 at Police Station Fateh Pur District Layyah on the statement of Allah Dewaya.

2. It is claimed by the complainant that about 15/16 years ago, his real uncle Allah Bakhsh contracted second marriage with Mst. Bashiran Mai. She was a divorcee having a son Naseer Ahmed aged about 9-10 years from the wedlock of her earlier husband namely Muhammad Ismail who has also brought up by the complainant's uncle. Said Naseer Ahmad petitioner No.2 used to visit the house of the complainant and had a bad eye on Yasmeen petitioner No.1 daughter of the complainant who was aged about 18/19 years. Naseer Ahmad was restrained by the complainant from visiting the house, who felt annoyance. In the night between 23/24-9-2004 Yasmeen had gone to ease herself in the fields and after some while on her hue and cry when the complainant and witnesses attracted to the spot they found that Naseer Ahmad along with two unknown persons was taking away Mst. Yasmeen forcibly in a red colour car.

3. Learned counsel for the petitioners contends that the petitioners are innocent as Mst. Yasmeen petitioner No.1 being sui juris has contracted marriage with petitioner No.2 Muhammad Naseer with her free-will and consent and has made statement before the Investigating Officer that nobody had abducted her; that writ petition was also filed by petitioner No.1 and the S.H.O. after recording her statement had recommended for the cancellation of the case but the learned Illaqa Magistrate disagreed with the police report; that out of their wedlock one child has also been born and the registration of the case is with mala fide intention and ulterior motive for pressurizing the petitioners to dissolve the marriage whereas they are not guilty of any offence.

4. Learned counsel for the complainant on the other hand opposes this application on the ground that they should approach the Court of first instance. Also claims that the petitioners are proclaimed offenders and they have lost their normal rights of audience. It is also contended that the offences fall within the prohibitory clause.

5. I have heard the learned counsel for the parties and also perused the record. The complainant in the F.I.R. admits that petitioner No.1 Mst. Yasmeen was aged about 18/19 years and as such she was sui juris and major. She filed W.P. No.606 of 2005 in this Court for quashment of the F.I.R. and S.H.O. Police Station Fateh Pur was summoned. On 24-2-2005 the S.H.O. recorded the version of petitioner No.1 and made a statement in this Court that according to petitioner No.1 nobody had abducted her and he also recommended for the cancellation of the case being based on false facts but the learned Illaqa Magistrate ?disagreed with the police report. Then challan was submitted in the learned trial Court, which issued non-bailable warrant of arrest against the petitioners and they were declared fugitive from justice. I am of the view that the petitioners had been continuously pursuing their case by filing W.P. No.606 of 2005 in this Court which was borne fruit as the Investigating Officer had undertaken to recommend for the cancellation of the case and it cannot be said that the petitioners were fugitive from justice. Due to this reason, this petition has been directly entertained in this Court.

6. Since petitioner No.1 being sui juris has contracted marriage with petitioner No.2, they are not guilty of any offence. Moreover, a child has born out of their wedlock. Petitioner No.1 has also not supported the allegation of her abduction: There is force in the contention of the learned counsel that the case has been got registered only to pressurize the petitioners to dissolve the marriage with mala fide intention and ulterior motive. Bail before arrest is meant to protect innocent citizens if they are found to have been involved in the criminal cases with mala fide intention and ulterior motive. Hence this application is accepted and the ad interim pre-arrest bail already granted to the petitioners vide order dated 15-7-2005 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000 each with two sureties each in the like amount to the satisfaction of the learned trial Court. N.H.Q./Y-12/L??????????????????????????????????????????????????????????????????????? Pre-arrest bail granted.