P L D 1984 Lahore 137 (PLP)

The petitioners stand charged under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 109, P. P. C.

2. The prosecution case is that on 20‑7‑1983, Inayat Ali petitioner abducted Mst. Hamida Bibi and took her to his house where she was subjected to rape by him, his son Nasir petitioner and his wife's brother Shah Din.

3. She was recovered on 14‑9‑1983 and was produced before a Magistrate on 15‑9‑1983 where she made a statement levelling allegation of abduction against Nasir and Inayat Ali petitioners and rape against all the petitioners. She stated that she was kept by the petitioners at different places for one and a half months during which they had been committing rape with her.

4. Bail is asked for on the ground that there is a delay of nearly 50 days in lodging the F. I. R. that admittedly Mst. Hamida Bibi is a major lady and voluntarily entered into Nikah with Shah Din petitioner. In support of it, a copy of Nikahnama duly registered, has been appended with the petition. It is further contended that Muhammad Yasin and Muhammad Yamin P. Ws. who stated about the abduction appeared before the police for the first time about fifty days after the occurrence and made contradictory statement to that of Mst. Hamida Bibi. They implicated Inayat only in her abduction whereas she bad levelled allegation of abduction against Inayat and Nasir petitioners. It. is next contended that the persons of the petitioners are no longer required by the police because following the completion of the investigation, challan has been submitted in the Court. Lastly it is contended that except her own solitary statement, there are no witnesses to the alleged rape with her.

5. Learned counsel for the petitioners has cited a number of authorities is support of his contentions. In Munir Ahmad v. The State (1983 P Cr L J 2343), it was held that in view of the claim of the petitioner that he has solemnized marriage with the abductee and got his Nikah registered, the case becomes of further enquiry and the bail was granted. Mumtaz Hussain v. The State (1983PCr.LJ909) is also an identical case.

6. In view of the fact that Mst. Hamida Bibi is sui jusis and the allegation as to whether she was forced to solemnize Nikah has yet to be looked into, I consider it to be a case of further enquiry and, therefore, admit r the petitioners to bail in the sum of Rs. 10,000 (ten thousand) each with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Cantt.

7. I feel here mentioning an important point having far reaching consequences. The incidents giving rise to proceedings like the one in hand can be greatly reduced if the Nikah Registrars appointed under the Muslim Family Laws Ordinance, 1961, instead of simply filling the various columns of the Nikahnama, in routine, realize that the duty that they are required to perform is very sacred because rights to succession, maintenance, dower, divorce, legitimacy of children and several other rights flow from a valid marriage. As public servants which essentially they are, they should demonstrate more sense of responsibility before authenticating the Nikah by making proper enquiries as to the competency of the parties to understand the nature of their act, their ages and whether or not they are so acting of their free will and without any compulsion. In our society, the girt is normally given in marriage by her parents ands in their absence by the nearest blood relation and that too mostly .at her ordinary place of residence. If this solemn ceremony is performed by the persons not answering the above description and at a place other than the ordinary place of residence of the girl in closed doors under mysterious circumstances a heavy duty is cast on the Nikah Registrars to thoroughly confirm and probe into the circumstance under which the marriage is being solemnized before authenticating the same. If they fail, they can, to a grant extent, be held responsible for the complications that follow in addition, to running the risk of being involved in litigation, both civil and criminal. M. Y. H. Bail granted.