2008 PLP 1373 (MLD)

KHALID ALI Z. QAZI, J.

Muhammad Akhter son of Nazir presently c9nfined in Central Prison Karachi seeks bail in Crime No.112 of 2008 under section 365-B, P.P.C. Police Station Gizri.

2. Brief facts of the prosecution case are that the complainant Muhammad Sharif son of Muhammad Yaar resident of Street No.6, Bakhshan Village, Gizri Road, Karachi stated that he lives with his wife and both of them are working while their daughter and daughter-in-law remain .home. On 7-4-2008 he and his wife went on work and he returned at home at 8-00 p.m. and they' saw that her daughter is not at home and asked about her daughter about her missing to the daughter-in-law she told that his daughter is out from home since 11-00 a.m. brother of our daughter-in-law usually visits to our home they had already proposed for her but he refused. Complainant tried to take information about her and on his inquiry he got information that Akhter son of Nazir with the help of his uncle Ramzan kidnapped her daughter namely Fiza 16 years for the purpose of committing the offence of Zina. He reported the matter to the police and registered the F.I.R. No.12 of 2008 under section 365-B, P.P.C., Police Station Gizri Karachi. The applicant was arrested on 10-4-2008 from his house.

3. I have heard Mr. Muhammad Zafar Khan learned counsel for the applicant. Mr. Raja Asghar Ali learned counsel for the complainant and Ms. Kausar Naz Naqvi learned State Counsel.

4. Mr. Muhammad Zafar Ahmed, learned counsel for the applicant has contended that the victim mentioned in the F.I.R. namely Mst. Fiza is present in Court and statement of abductee was recorded on 14-4-2008 under section 164, Cr.P.0 before the IIIrd Judicial Magistrate Karachi (South), wherein she has stated that she has never been kidnapped by any one and she by her own free-will solemnized Nikah with the accused in presence of the witnesses on 9-4-2008 against the dower amount of Rs.1,00,

000. He has further contended that on 14-4-2008 police had handed over the custody of abductee to her mother-in-law/mother of the accused on her on wishes. He has further contended that the concerned police officer had submitted challan under `C' class in which he declared that the applicant is innocent and both have married according to law and the age of the girl is between 19/20 years as per the Medical Certificate issued by the Medial Superintendent Civil Hospital Karachi. In support of his arguments the learned counsel has annexed following documents along with the bail application:-- (i) Affidavit of Free-will, dated 9-4-2008 duly signed by the abductee on Rs.20 Stamp paper duly attested by the Justice of Peace, Government of Sindh empowered under section 22-A, Cr.P.C. to attest the document. (ii) Nikahnama wherein the date of marriage is mentioned as 9-4-2008 duly attested by the Oath Commission Karachi. (iii) Statement under section 164, Cr.P.C. given by Mst. Fiza (abductee) before IIIrd Judicial Magistrate Karachi (South) in Crime No.112 of 2008 under section 365-B, P.P.C., Police Station Gizri. (iv) Handing over memo. prepared by the police giving the custody of the abductee to her mother-in-law, dated 14-4-2008 in compliance of the order passed by the IIIrd Judicial Magistrate Karachi (South). (v) Order of the Court in respect of determination of age of abductee Fiza, dated 15-5-2008 to Medical Superintendent Services Hospital Karachi. (vi) Constitution of the Medical Board by the Medial Superintendent Services Hospital and Civil Surgeon Karachi consisting of:-- (1) Professor Salahuddin Afsar, Principal, Dow Medical College Karachi

Chairman (2) Profesor (Capt.) Farhat Hussain Mirza, Professor of Forensic Medicine, DUHSK/Civil Hospital Karachi--Member (3) Professor Iqbal A. Memon, Professor of Surgery, DUHSK/Civil Hospital Karachi

Member (4) Dr. Sikandar Refaique Quraishi, Chief Radiologist, DUHSK/Civil Hospital Karachi

Member (5) Dr. Muhammad Aslam Pechuho, Medical Superintendent, Services Hospital and Civil Surgeon Karachi--Secretary/Convener Proceedings of the Special Medical Board for verification of age in respect of abductee is between 19/20 years duly signed by the Chairman and four members of the Medical Board.

5. Mr. Raja Ali Asghar learned counsel for the complainant has filed his power on 23-6-2008. He has mainly contended that the age of the girl as per birth certificate is 1994 and hardly she come under the age of 13/14 years. He has taken the plea that the accused contracted marriage on 7-4-2008 and medical examination of the abductee clearly shows that abductee has been used for sexual intercourse. As such accused is not entitled for grant of bail. He further submits that the medical report submitted by the Medical Officer is also challenged by the complainant and matter is pending before high-forum of Health Department, Health Secretary, Government of Sindh. He urged that the Investigating Officer malafidely and intentionally made no fair investigation and submitted `C' Class before the Illaqa Magistrate and no order is passed by the Ilaqa Magistrate and Court is not bound to agree with the opinion of Investigating Officer He seriously opposes the grant of bail to the applicant.

6. Ms. Kausar Naz Naqvi learned State Counsel fully supported the arguments advanced by the learned counsel for the applicant and has recorded her no objection for grant of bail to the applicant. She further submits that according to prevailing atmosphere of our country, it is necessary to be considered whether the victim comes within the age of puberty or not which is an important factor to determine the age.

7. I have given due consideration to the arguments advanced by the learned counsel for the parties and carefully gone through the available record.. The abductee is present in Court and on query she submits that whatever has been stated by the learned counsel for the applicant is correct and she verified the factual position of the case as well and in open Court she said that she has never been kidnapped by any one and she on her own freewill solemnized Nikah on 7-4-2008 in presence of the respective witnesses against the dower amount of Rs.1,00,000 with the applicant. She further stated that she is still happily residing with her in-laws. She also states that since his father wants to give her hand to a person, which is not acceptable to her, therefore she on her own free-will solemnized Nikah with the applicant/accused, who is her cousin in accordance with law and she is happily residing with her in-laws.

8. In these circumstances, on the tentative assessment of the material available on the record I am of the considered view that this case requires further inquiry as the prosecution has fully supported the version of the applicant. The abductee is sui juris and she is fully entitled to enter into marriage with the accused at her own free-will in accordance with law. I, therefore, admit the applicant on bail subject to furnishing solvent surety in the sum of Rs.50,000 (Rupees Fifty Thousand only) with P.R. bond in the like amount to the satisfaction of the learned trial Court. M.H./M-80/K Bail granted.