2003 P Cr (PLP)

Iftikhar Ibrahim Qureshi for the State assisted by Malik Altaf Hussain Rawn for the Complainant. Date of hearing: 23rd October, 2002. Mukhtar Hussain petitioner seeks post-arrest bail in case F.I.R. No.161 of 2002 dated 12-8-2002 under sections 10/16, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Police Station Kundia, Tehsil Alipur, District Muzaffargarh.

2. Briefly the allegation against him is that he on 5-1-2002 at about 9-10 a.m. had enticed away Mst. Shahina complainant and then had been subjected her to Zina-bil-Jabr.

3. It has been contended on his behalf that she of her own accord had entered into valid Nikah with him and thereafter lived with him as his wife and he had never enticed her away nor committed Zina with her; that proof of Nikah is on the police record as well as with the instant petition in the form of Nikahnama; that she has also filed harassment petition in the Bahawalpur Bench of this Court and therefrom S.H.O. concerned was restrained to interfere in her matrimonial life; that she due to the pressure of her parents has been forced to change her stand, while the factual position was the same as has been mentioned above; that there is about six months inordinate delay in lodging the F.I.R.; that he had brought suit for restitution of conjugal rights against her; that in the investigation, it has been found that she was a consenting party and so it is yet to be seen that if any credence can be attached to her statement against him; that he is behind the bars; and is a previous non-convict.

4. Conversely the learned State Counsel assisted by learned counsel for the complainant has opposed the application on the ground that he has. enticed away the complainant and then had been subjecting her to Zina bil-Jabr and has also procured her thumb-impression on plain papers and had used it in forging Nikahnama showing his Nikah with her.

5. I have carefully considered the submissions advanced from both sides with the help of available record.

6. Allegedly the petitioner has enticed away the complainant and had subjected her to Zina-bil-Jabr. His plea is that he had never enticed her away and she of her own accord had entered into valid Nikah with him and had been living with him as his wife and subsequently, she under the pressure of her parents had been forced to change her stand. In this petition copy of order dated 24-1-2002 recorded by his Lordship Mr. Justice Iftikhar Hussain Chaudhry, the Honourable Chief Justice in Writ Petition No.243 of 2002 Mst. Shahina v. S.H.O. and others has been annexed. The same shows that in that writ petition the respondents Nos.1 and 2 were restrained to interfere in the matrimonial life of the petitioner. Besides then this, the petitioner had brought suit for restitution of conjugal rights against her and the same is pending adjudication before a competent Family Court. Furthermore, the police record reveals that in the ultimate investigation, it has been found that she was consenting party and had eloped with the petitioner of her own accord. In view of this position, when, she has been found to be a consenting party, it is yet to be seen that if her statement can be attracted any credence as against him while she has exculpated herself from the charge. In that view of the matter, his case requires further inquiry into his guilt, so his case does fall under subsection (2) of section 497, Cr.P.C. He is behind the bars. I, therefore, admit him (petitioner) to bail subject to his furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./M-1830/L. Bail granted.