2003 PLP 2315 (YLR)

Kamran-Bin-Latif for the State. Muhammad Khan petitioner has sought for post-arrest bail in case: F.I.R. No.43 of 2000 dated 7-2-2000 under section 11 Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered with Police Station Saddar, Kehror Pacca, District Lodhran. Later on, the police have added section 10 of the same in it.

2. Briefly the prosecution case as per F.I.R. is that on 1-2-2002 at about 9-00 a.m. he alongwith his mother Mst. Manzooran Mai and brother Noor Muhammad and one Muhammad Ajmal had abducted Mst. Rabia Mai 13/14 years old, the daughter of the complainant for Zina. The bail has been sought by him on the ground that he has falsely been roped in on account of mala fide on the part of the complainant; that the alleged abductee Mst. Rabia Mai is sui juris, who of her own accord, had entered into a valid Nikah with him and thereafter she had been living with him as his wife; that she has brought a private complaint under section 506, P.P.C. against the complainant and others in which she has clearly admitted that, she of her own accord, against the will of her parents has entered into Nikah with him on 1-2-2002 and is living with him, while her father and others have threatened her of dire consequences; that she had also made statement before the Court of Mr. Naveed Bari, learned Magistrate 1st Class, Bahawalpur in that complaint reiterating the similar averments as were in her complaint; that after her recovery she had also filed Writ Petition No.520 of 2002 in the Bahawalpur Bench of this Court and therein his lordship, the Honourable Chief Justice Iftikhar Hussain Chaudhary, J. had issued direction to the S.H.O., Police Station Cantt., Bahawalpur not to take any unlawful action against her and her husband with whom she was married without the consent of her family members; that she subsequently when was handed over to her parents under their influence had brought suit for jactitation of marriage against him which is still pending adjudication in a competent Court, while as against the same he has also brought suit for restitution of conjugal rights against her and the same too is pending determination and in presence of all these facts his case is one of further inquiry; and that he is behind the bars and is previous non-convict.

3. Conversely the learned State Counsel has opposed the application on the ground that he is named in the F.I.R.; that he alongwith others had abducted the daughter of the complainant and had been subjecting her to Zina-bil-Jabr.

4. I have carefully considered the submissions advanced by both the sides with the help of the available record.

5. Allegedly the petitioner alongwith his co-accused had abducted Mst. Rabia Mai for Zina. He has taken the plea of valid marriage between him and her with her free consent. There is attested copy of Nikahnama with the petition showing his Nikah with her having been performed on 1st of February, 2002. The same is the date of alleges incident. In the same her age has been shown to be 18 years. There is also copy of complaint under section 506, P.P.C. titled "Rabia Bibi v. Mistri Faiz Bakhsh and others". In the same she has admitted that she has entered into the Nikah with him on 1-2-2002 but it was against the will of her parents. She has also mentioned therein that she is living with him and her father and others are extending her threats of dire consequences. In the same her statement appears to have been recorded by the Magistrate 1st Class, Bahawalpur on 2-2-2002. In the same she has also reiterated the same stand as is in her said complaint. There is also copy of Writ Petition No.520 of 2002 filed at Bahawalpur Bench of this Court. In the same his lordship the Honourable Chief Justice Iftikhar Hussain Chaudhary on 14-4-2002 has issued direction to respondent No.1/S.H.O., Police Station Cantt. Bahawalpur to ensure that no unlawful action is taken against her and her husband, with whom she was married without the consent of other family members. There is also the certified copy of plaint in suit for jactitation of marriage titled "Mst. Rabia Bibi v. Muhammad Khan". In the same she has averred that petitioner alongwith others hay forcibly abducted her and had been taking her to different places and subjecting her to Zina bil-Jabr. There is also copy of plaint in sui for restitution of conjugal rights titles "Muhammad Khan v. Mst. Rabia Bibi". In the same he also claimed that she is his legally wedded wife. Admittedly both the suits are still pending determination before competent Family Court.

6. In view of pendency of these suits in which they both have to face divergent pleas and aforesaid complaint and the writ petition and her statement in the former before the Magistrate and particularly the plea' of valid marriage by him, it is yet to be seen that if her or his co-accused have abducted her as alleged in the F.I.R. and she was subjected to Zina-bil-Jabr or she of her own accord has entered into Nikah with him. So, his case is covered under subsection (2) or section 497, Cr.P.C. calling for further inquiry into his guilt. He is behind the bars and no more required by the police for further investigation. He is also stated to be previous non-convict.

7. In these circumstances, I accept this bail application and direct that petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs. one lac with one surety in the like amount to the satisfaction of trial Court. H.B.T./M-1675/L Bail granted.