1995 P Cr (PLP)

3. An application was made to Magistrate 1st Class, Gujranwala on 16-3-1995 for recording the statement of Mst. Zahida Bibi and sending her to Darul Aman. The statement of Mst. Zahida was recorded by the Magistrate the same day which was read over to her and she signed it accepting the same as correct. On 21-3-1995 another application was made to the Magistrate for summoning of Mst. Zahida from Darul Aman and for recording her statement under section 164, Cr.P.C. The Magistrate ordered the production of Mst. Zahida. She appeared in Court on 21-3-1995 and the Magistrate after complying with all the formalities/requirements of section 164, Cr.P.C. recorded her. statement on the same day wherein, apart from other facts she admitted to have contracted Nikah with Saeed Ahmad and alleged that F.I.R. which was lodged for her alleged abduction was false. The Magistrate gave the certificate, after the recording of the evidence.

4. Writ Petition No.4074 of 1995 was instituted by Mst. Zahida in this Court and my brother Ahmad Saeed Awan, J. passed the following order on 4-4-1995:-- "Learned counsel contends that the petitioner is a sui juris and married with her own consent on 22-11-1994 while the F.I.R. has been lodged on 9-3-1995 by his paternal-uncle though the statement of the petitioner under section 164, Cr.P.C. has been recorded. (2) Notice to the respondents for 20-4-1995. (3) Meanwhile, the proceedings in the F.I.R. shall remain stayed."

5. The petitioner Mst. Zahida is present in Court today. She was questioned in the open Court in the presence of her father and uncle, the learned counsel for the complainant and the Police Officers as also the others present in the packed Court house. She stated that she had exercised her right of being sui juris and had contracted Nikah with Rai Saeed Ahmad son of Qutab Din and that she had never contracted Nikah with Arshad and that to save herself from being given to another person with whom her marriage could not be effected, she had to leave the house of her parents.

6. Nikah Registrar Ehtesham-ul-Haq is also present with Nikah Register. He has shown me the register, the binding of which appears to be intact. He submits that the Nikah was in fact registered duly and that the Investigating Officer had after torture obtained her signatures on an alleged statement that he had not signed the Nikahnama and that he had no record with him as Registrar.

7. The learned counsel for the complainant submits that the witnesses of alleged Nikah, the Nikah Registrar and others had appeared before the Court of Session, filed their affidavits and had sworn before the Court that their affidavits were correct. The witnesses about whom the learned counsel submits that they had accepted the swearing of affidavits before the Court of Session, are present in Court today and deny the same and I can imagine the quantum of coercion, pressure and undue influence exercised on them. They were produced before the Court of Session and that the affidavits which were produced by the witnesses before the Court of Session were properly looked into, appreciated and acted upon. The copy of the application has been placed on the file which was made to the Magistrate on 21-3-1995 in which it was stated by the father of Zahida that his daughter was abducted and he had got the case registered in Police Station Noshehra Virkan and that after forging the Nikahnama, Mst. Zahida was sent to Darul Aman and that she was produced in Court on the basis of the said forged Nikahnama. He had also produced Nikahnama of Mst. Zahida with Muhammad Arshad before the Court. Request was made for holding an enquiry against the accused persons. The Magistrate had ordered that the application be produced before him alongwith proof. No proceedings appear to have been conducted thereafter.

8. I have perused the photocopy of the proceedings of the Magistrate who recorded the statement under section 164, Cr.P.C. He has given a certificate that while Mst. Zahida was made to sit in the Court and while her statement was being recorded, none except Reader and Ahlmad of the Court, apart from the Magistrate and Zahida were present. I am not prepared to believe Ali Muhammad, that he was present within the Court room. The learned counsel for the complainant concedes that the applicant was, admittedly, not present before the Court but he did make the application to be heard.

9. The petitioner in the present case is admittedly a sui juris. The Investigating Officer has gone too far in implicating every body that he could lay hand upon. I would not believe the two uncles of alleged abductee to have seen of her being taken away by two strangers and then come silently to the house and reported the same before elder brother. The texture of the society, the norms and normal conduct of Punjabis cannot be ignored by this Court. The customs also cannot be lost sight off and I am afraid to remark, if it does not prejudice the case of the parties before the trial Court, that the F.I.R. was a cock and bull story and had no independent legs to stand. The Investigating Officer used his official influence to subdue the Nikah Registrar and other witnesses to swear affidavits which they have denied today. The petitioner is a woman. Nothing is to be recovered from her. She cannot be made to suffer further dishonour of arrest by the police. She has made statement in the High Court as also before the Court of a Magistrate under section 164, Cr.P.C. and the same was in possession of the Investigating Officer. He can base his findings, whatever they may be on all the material before him. The proviso of section 497, Cr.P.C. is also available. The amendment to section 167, Cr.P.C. is also available.

10. This application is, therefore, allowed and the petitioner is granted bail in all the offences. She shall be released on bail subject to her furnishing bail bond in the sum of Rs.5,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Gujranwala.

11. The Police Officer present in Court today shall have a personal bond for 15 days from the lady, incorporating her formal arrest in the papers and allow her to leave wherever she wants, i.e. the house of her husband. N.H.Q./Z-154/L Bail granted.