2004 P Cr (PLP)

Dilshad Ali Khan for Petitioners. Sardar Shamim Ahmad Khan for the Complainant. Abdul Ghani for the State. Date of hearing: 13th October, 2003. The petitioners, who are husband and wife, have-sought their pre-arrest bail in case F.I.R. No.204 registered at Police Station. Liaquatpur on 19-8-2002 for an offence under section 16/10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The relevant facts as given in the F.I.R. are, that Mst. Shumayla Kauser daughter of the complainant was given in Nikah to one Muhammad Saleem but she remained living with her mother-complainant as Rukhsati was not effected. Muhammad Shahid who is nephew of the petitioners allegedly, developed illicit relationship with Mst. Shumaila Kauser and was stopped by the complainant to visit the house. On 1-6-2002 the complainant left her house and returned on 2-6-2002, meanwhile, Mst. Shumaila Kauser had left the house. During search, the complainant was informed that Mst. Shumaila was seen in the company of Shahid Pathan. The witnesses further informed that the petitioners were 'also alongwith Mst. Shumaila and Shahid Habib when the two boarded ,the bus-. The complainant approached the petitioners who promised to return Mst. Shumaila Kauser and as the promise was not fulfilled the matter was reported to the police. Mst. Shumaila came back to her mother-complainant and her statement was recorded under section 161, Cr.P.C.. on 3-11-2002 wherein she leveled allegation of Zina against Muhammad Shahid Habib, Dr. Muhammad Arif and Riaz petitioner.

3. The learned counsel for the petitioners has argued that the petitioners have been roped in a. false case because of their relationship with Muhammad Shahid Habib who was real nephew of Riaz petitioner. He has further argued that in fact Mst. Shumaila Kauser was. sui juris who with her free consent had married with Shahid Habib and the Nikah Nama was registered on 14-6-2002. Conversely, the learned counsel for the complainant and the learned counsel for the State have vehemently opposed this application and have argued that Mst. Shumaila has leveled allegation of Zina against the petitioner and that Nikah Nama with Shahid Habib had no significance as Mst. Shumaila had already entered into Nikah with one Muhammad Saleem and that Shahid Habib, subsequently, pronounced written Talaq upon Mst. Shumaila wherein he admitted that he knew about the previous marriage of Mst. Shumaila with Muhammad Saleem and that the petitioners absconded after their pre-arrest Bail was dismissed, for non-prosecution by the learned Additional Sessions Judge vide order, dated 28-5-2003.

4. I have heard the learned counsel for the parties and have also gone through the record. It has been noticed that the matter was reported to the police after 14 days it is, admitted in the F.I.R. that Mst. Shumaila had developed illicit relationship with Shahid Habib; Mst. Shumaila in her statement recorded under section 161, Cr.P.C. on 3-11-2002 has admitted that she had thumb-marked and signed the Nikah Nama although she has explained that she was forced to do the same. It has also been noticed that according to the afore-referred statement Mst. Shumaila had returned to her mother's house, of her own and had been staying with her mother for some time before appearing before the Investigating Officer; the statement of Mst. Shumaila was also recorded on 21-11-2002 in the presence of Masood Ahmad, Ex-M.P.A. and other P.Ws. wherein she stated that no one had committed Zina with her. On the same date Mst. Razia Bibi also submitted an affidavit before the investigating Officer wherein she stated that she had got the case registered against the accused due to some misunderstanding. It is also unlikely that the petitioner Riaz. who is married person would commit Zina with a lady who was involved with his real nephew and had entered into Nikah with him. The petitioners have already joined the investigation; nothing is to be recovered from them. Both the complainant and abductee Mst. Shumaila had been making divergent statements before the police. The grant of pre-arrest is a salutary principle of law which is exercised to save the innocent persons from the torture of the police and humiliation. Considering all the above mentioned circumstances I confirm the ad interim pre-arrest bail already granted to the petitioners vide order, dated 2-6-2003 subject to their furnishing bail bonds in the sum of Rs.10,000 (Rupees ten thousand only) each with one surety each in the like amount to the satisfaction of the trial Court within one week. H.B.T./M-2404/L Ad interim pre-arrest bail accepted