2003 PLP 1407 (MLD)

Applicant is facing trial for an offence under section 11, Zina (E.H.O.) in F.I.R. No.236 of 2001 of Police Station Khawaja Ajmer Nagri in the Court of Vth Additional Sessions Judge, Karachi, Central. Briefly stated the facts of the case as per F.I.R. lodged by complainant Imam Bux are that he was residing alongwith his family in Shah Nawaz Bhutto Colony North, Karachi. He had one' daughter namely Nadia aged about 13 years. It is stated that Naseer the husband of his wife's sister used to reside near his house. On 30-10-2001 at about 12-00 noon, applicant Naseer came to their house and stated that his wife was not feeling well and that she had called Mst. Nadia. As such, she was taken by him but when she did not turn up till evening, the complainant went to the house of his sister-in-law and enquired about his daughter. She disclosed that she had not called Mst. Nadia and she further disclosed that applicant Naseer was also missing since noon time. The complainant then lodged F.I.R. on 1-11-2001. After the registration of F.I.R. police took up investigation and arrested the present applicant on 3-1-2002. Abductee Mst. Nadia was recovered from his possession on the same day. After completion of investigation challan was submitted and the case is pending trial in the aforesaid Court. It is contended by the learned counsel that F.I.R. is delayed by about two days and no explanation is furnished by the complainant. It is submitted that abductee had contracted marriage with the applicant with her own free will and consent. Such Nikahnama has been produced on record and she had appeared before the Judicial Magistrate Ghari Yasin and sworn an affidavit to that effect. She has not been abducted by anybody. On the next day her Nikah was performed and the copy is produced on record. It is argued that she was not under any restraint as she had appeared before Judicial Magistrate and sworn an affidavit before him. Her photo is affixed thereon. She did not make any complaint before First Class Magistrate that she was under any duress. She has attained puberty and can contract marriage upon her own free will. Mr. Habib-ur-Rasheed learned counsel appearing for the State has opposed bail plea on the ground that she h as given statement against the applicant and, therefore, applicant is not entitled for bail. The record shows that incident had occurred on October 30th at about 12 noon but the F.I.R. was lodged after two days. On 3-11-2001 she had appeared before the Judicial Magistrate and swore an affidavit, wherein she stated that she has not been abducted and did not make any complaint against applicant. On 4-11-2001, her Nikah was performed and she affixed thumb-impression over it in presence of Nikah Khawan and the witnesses. She was allegedly recovered from the possession of accused on 3-1-2001, but she remained in police custody till 5-1-2001. when she was produced for recording her 164, Cr.P.C. statement? She remained in police custody for about two days before recording her statement which cast a serious doubt about the genuinity and voluntariness of statement. The record demonstrates that abducttee was consenting party and the commission of Zina is yet to be established by the prosecution when the evidence is recorded. Till then the case of applicant comes under the scope of section 497(2), Cr.P.C. He is granted bail in the sum of Rs.100,000 and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./N-136/K????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.