2011 PLP 2273 (YLR)

ATTAULLAH KHAN, J.

Having failed to get the concession of bail from the Court of learned Sessions Judge, Tank vide order dated 23-11-2010, the petitioner Tilla Muhammad has now come up to this Court for seeking his release on bail in case F.I.R. No.67 dated 29-6-2009 registered under section 365-B, P.P.C. at Police Station Mulazai, District Tank.

2. The brief facts of the prosecution case and that Habib-ur-Rehman complainant lodged the report to the effect that her daughter Mst. Samrina Bibi aged about 17/18 years was engaged to one Muhammad Tariq about 5/6 months ago. On the morning of 22=6-2009 when the complainant got up, he found her daughter missing. He started search for her and came to know that she has eloped with the petitioner for contracting marriage with him.

3. Learned counsel for the petitioner submitted that there is no evidence at the moment to connect the petitioner with the offence of abduction. According to learned counsel, the report was lodged with sufficient delay of about more than 12 hours. His next submission is that in the F.I.R., there is nothing to constitute an offence of abduction. He further submitted that the petitioner had entered into Nikah with the lady of her free will and the Nikah is quite legal as she is sui juris. The learned counsel also referred to the Nikahnama executed between the parties and also relied upon the statement recorded by the lady in the Court. According to the learned counsel, the first alleged Nikah has not been proved and no offence has been committed, therefore, the petitioner is entitled to bail.

4. On the other hand, learned counsel for the complainant-respondent stated that the petitioner is committing Zina because he has effected Nikah with the lady who was already given in Nikah to somebody else.

5. I gave my anxious consideration to the above arguments and thoroughly perused the material on record.

6. I would first discuss the allegation of Nikah of the lady with one Muhammad Tariq. The report recorded in daily diary dated 22-6-2009 discloses that Mst. Samrina Bibi was engaged with one Muhammad Tariq. The statement of Habib?ur-Rehman complainant has also been recorded under section 161, Cr.P.C. In this statement, the complainant has again stated about the engagement of his daughter with B Muhammad Tariq. He has not mentioned that any Nikah was performed. Now it is clear that the first alleged Nikah of Ms. Samrina Bibi with one Muhammad Tariq was not in fact Nikah but engagement. There is difference between "Nikah" and engagement. Engagement is a contract but not final.

7. The lady, at the time of occurrence, was more than 18 years of age. She was also examined on 13-11-2010 by the doctor and according to the report, she is 20-22 years of age. The occurrence took place on 22-6-2009, therefore, as per medical report, she was approximately of 21 years of age. She was major and could enter into a valid Nikah. At this stage, if we presume that the second Nikah of the petitioner with the lady is disputed, then proper forum would be Family Court to decide the issue because Criminal Court is not competent to take jurisdiction, I rely upon PLD 2008 Lahore 66 wherein it is held that:-- "Reliance in this behalf is also placed on the case of Iftikhar Ahmad alias Raju Soomro and 2 others v. Khan Muhammad and another 2005 YLR 2500 wherein it has been held that "Where both the petitioner and the complainant were disputing their respective Nikah, dispute could only be resolved by the Family Court after entering into a full-fledged inquiry as to the genuineness of marriage between the parties in the suits for jactitation of marriage and it was not a case which should have gone to Criminal Court as Criminal Court was not competent to decide and declare about the legality of respective Nikahs.? In the case in hand the father of the lady and her first alleged husband have not yet tiled any suit for jactitation of marriage which creates doubts. In another similarly case, the honourable Lahore High Court in the case of Nighar Abbas and others v. Muhammad Zarif 2004 PCr.LJ 620 has held that, "A lady whose age was about 20 years and sui juris could enter into a valid Nikah with a man of her choice by refusing her abduction." It was also held that, "Validity of the Nikah of the lady is to be considered and decided by Family Court and not Criminal Court."

8. In this case, the lady Mst. Samrina Bibi appeared in the Court of learned Sessions Judge, Tank, on 13-11-2010 and recorded her statement wherein she deposed that she entered into Nikah with accused-petitioner on her own free-will; that she was never abducted by him. She also disclosed her age as 18 years at the time of occurrence. This statement also reveals that prima facie no abduction has taken place and the petitioner cannot be connected with the offence for which he is charged unless some facts are proved at the trial stage against him.

9. Since Mst. Samrina Bibi at the time of Nikah with the petitioner and per her statement before the learned Sessions Judge, Tank, was aged about 20/21 years, therefore, she was sui juris and could enter into a valid Nikah on her own free-will. I may rely upon PLD 2004 SC 219 wherein it is held that, "A sui juris Muslim female can enter into a valid Nikah/marriage on her own free-will."

10. The upshot of my above discussion is that as per record, the first alleged Nikah of the lady with Muhammad Tariq was engagement and not Nikah unless proved in the trial or in a Family Court; the lady is sui juris and is competent to enter into Nikah of her choice which fact has been admitted by her while recording her statement before the learned Sessions Judge on 13-11-2010. In the said statement, she also denied her abduction by the present petitioner. The case has become of further inquiry and the petitioner is entitled to bail on merits, therefore, at bail stage, his abscondence becomes irrelevant.

11. For the reasons mentioned above, this petition is accepted and the petitioner Tilla Muhammad is admitted to bail provided he furnishes bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means. However, this order shall not affect the trial. H.B.T./17/P???????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.