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Criminal Miscellaneous Nos. 352‑B and 353‑M of 1984/BWP, decided on 2nd April, 1984.

---S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑Bail‑‑Name of accused not appearing in First Information Report‑‑Abductee making varying statements and in one of her statements, absolving accused and admitting to have married him of her own accord‑‑Accused relying on Nikahnama which abductee had not specifically denied‑‑Question whether she was subjected to rape per force or she had contracted marriage with accused of her own free will requiring further inquiry‑‑Bail granted.

Sardar Ahmad Khan for Petitioner.

Sh. Abdul Hameed for the State.

Malik Muhammad Aslam for the Complainant.

Date of hearing: 23rd April, 1984.

Abdul Hameed stands arrested under section 11/10(3) of offence of Zina (Enforcement of Hudood) Ordinance, 1979, in a case registered at Police Station Saddar, Bahawalpur.

2. According to the prosecution Mst. Zohran Mai aged 11/12 years was found missing from her house on 12‑4‑1982. Allah Bakhsh, her father, was informed by Ghulam Mustafa and Ghulam Yasin P.Ws. that she was seen in the company of Muhammad Murad, his wife Mst. Anwer Mai, Manzoor Ahmad and his wife Mst. Zahoor Mai at Paras Textile Mills Bus‑stop. Allah Bakhsh approached the aforesaid persons for the restoration of his daughter who first promised to return the girl but later on resiled and consequently, Allah Bakhsh reported the matter at the police station on 15‑4‑1982. Mst. Zohran Mai appeared before the Investigating Officer few days later. She was produced before a Magistrate for recording her statement under section 164, Cr.P.C. wherein she levelled the allegation of Zina against the petitioner whom she was handed over after abduction by co‑accused of the petitioner. According to the medical examination of the prosecutrix, she was aged about 15/16 years and was used to sexual intercourse.

3. The petitioner applied for the grant of bail in the Court of Sessions Judge which was declined, hence this petition. It may be stated that all other co‑accused of the petitioner are stated to have since been enlarged on bail.

4. It is argued on behalf of the petitioner that the abductee is major and she had contracted marriage with the petitioner of her own free will vide Nikahnama, dated 14‑3‑1982. It is also submitted that she had sworn an affidavit in this regard on 14‑3‑1982 before the Oath Commissioner. Learned State counsel has, however, resisted this petition.

5. Having considered the facts and circumstances of the case in light of the arguments of learned counsel for the parties I find that the petitioner's name does not appear in the F. I. R. and that the abductee has made varying statements. In one of these statements she had absolved the petitioner and admitted to have married him of her own accord. She had not specifically denied her thumb‑impression of the Nikahnama relied upon by the petitioner. In the circumstances, it requires further inquiry as to whether she was subjected to rape per force or she had contracted marriage with the petitioner of her own free will. Consequently, I allow this petition. The petitioner is directed to be released on bail subject to his furnishing security in the sum of Rs.10,000 (Rupees ten thousand only) with one surety in like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Bahawalpur.

M. Y. H. Bail granted.

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