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Criminal Miscellaneous No. 616/B of 1985, decided on 8th July, 1985.

---S. 497--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11--Bail, grant of--Abductee allegedly found missing during night when accused alongwith co-accused staying in house- Complainant informed by witnesses of having seen abductee in company of accused on same night--F.I.R. lodged after one month Accused allegedly marrying four years before occurrence and registering marriage after decree of restitution of conjugal rights but before registration of case--Complainant setting up another marriage of abductee but Nikah not; registered- - Question of genuineness of Nikahs required serious consideration and to be determined at trial--Unexplained delay in lodging F.I.R. assumed significance and case required further inquiry--Bail granted in circumstances.

Insaaf Bhatti for Petitioners.

Zafar Mahmood for the State.

Petitioners who are accused in a case under section 10/11 of Ordinance VII of 1979 read with section 30, P.P.C. registered, at P.S. Taunsa, District D.G. Khan, vide F.I.R. No. 59, dated 26-4-198 . hive moved this petition for post- arrest bail.

2. Facts, briefly stated, are that Muhammad Hayat complainant, who is paternal-uncle of Mst. Waziran petitioner, lodged a report with the police on 26-4-1985 that about one month, prior thereto, Ibrahim petitioner, his father Maiwa, and his mother Mst. Aisha stayed in the house of the complainant in village Cholani. On the following morning when the complainant woke up, he found Ibrahim petitioner, his mother and his father as also the, complainant's niece Mst. Waziran missing from the house. One iron box containing 21 ladies suits, 20 Dopattas, one Shawl A and one pair of shoes was also found missing. Ghulam Mustafa and Azim P.Ws. told the complainant, that they had seen the petitioners and others going away at 4 a.m. Precise, allegation made in the F.I.R. was that Ibrahim petitioner developed illicit intimacy' with Mst. Waziran petitioner and abducted her although she was already married to one Fida Hussain about a year and two months earlier. Farid, brother of Ibrahim petitioner, who is husband of Mst. Naziran, a real sister of Mst. Waziran petitioner and one Ghulam Rasool were also named as accused persons.

3. Petitioners alongwith their co-accused Maiwa and Mst. Aisha were arrested on 27-4-1985. They moved an application for bail before the learned Sessions Judge, D.G. Khan who by his order, dated 23-5-1985 allowed bail to Maiwa and Mst. Aisha accused but refused it to the petitioners. Farid and Ghulam Rasool co-accused were, however, allowed bail before arrest by the learned Sessions Judge by a separate order passed on 23-5-1985. Petitioners have now approached this Court to seek the bail.

4.It is submitted by the learned counsel for the petitioners that petitioners had married about four years ago and they got their marriage registered on 8-4-1985 after Ibrahim petitioner got a decree for restitution of conjugal rights from Civil Court on that date. Submission of the learned counsel is that the decree was obtained and the petitioner's Nikah was registered before the registration of the case. It is further submitted that Mst. Waziran who is about 22 years of age had married Ibrahim petitioner of her own free will and accord but the complainant who wanted to marry Mst. Waziran to a person of his choice has lodged a false case by setting up a false Nikah of Mst. Waziran with Fida Hussain. Learned counsel points out that Fida Hussain is a minor and his so-called Nikah with Mst. Naziran is not even registered with the Nikah Registrar. Learned counsel further points out that the Nikah set up by the complainant was not performed by any Maulvi or, Imam Masjid which is normally done but it was performed by one Mahmood who is admittedly not a Maulvi or Imam Masjid and is real nephew (sister's son) of the complainant. Even the witnesses of the said Nikah are also nephews (sister's son) of the complainant. On this premises, learned counsel for the petitioners has vehemently argued the Nikah set up by the complainant was false.

Learned counsel for the petitioners has further contended that the parties are closely related to each other. Farid, brother of Ibrahim petitioner, is married to Mst. Naziran, a real sister of Mst. Waziran petitioner. His argument, therefore, is that it does not stand to reason that the petitioners would be allowed to live as husband and wife without a proper and lawful marriage and particularly if Mst. Waziran had already been really and genuinely married to Fida Hussain. Learned counsel also poinis out that the F.I.R. has been lodged with a delay of one month for which there is no reasonable explanation. This delay, according to the learned counsel, is very significant.

5. Learned counsel appearing for State has opposed the petitioners' prayer for bail by submitting that the offences with which they are charged fall within the prohibitory clause of section 497(1), Cr.P.C. He has, however, not denied that the alleged Nikah of Mst. Waziran with Fida Hussain was not registered and that Mahmood who performed the said Nikah as also other witnesses of the Nikah are the sister's sons of the complainant. He also does not deny that Mahmood was not Imam Masjid and that Fida Hussain was a minor. Investigating Officer present in Court states that there is no explanation on the record as to why the Nikah set up by the complainant was not registered with the Nikah Registrar.

6. In view of what has been stated above, question as to which of the two Nikahs set up by the complainant and the petitioners is genuine requires serious consideration. This question of course, shall be determined at the trial and no opinion can or ought to be expressed at this stage lest it prejudice the case of either party. Suffice it, however, to observe that in the circumstances aforementioned, delay in lodging the F.I.R. assumes significance. In the circumstances, I am of the view that the case of the petitioners calls for further inquiry. For all these reasons, I am inclined to grant bail to the petitioners. It is, therefore, ordered that they be released on bail on their furnishing security each in the sum of Rs.30,000 (thirty thousand) with two sureties, each in the like amount, to the satisfaction of A.C./Duty Magistrate, Taunsa. It is further directed that at least one of the sureties of Mst. Waziran shall be a person related to her within the prohibited degree like a paternal or maternal-uncle other than the complainant who shall ensure that there is no repetition of the offence with which she is charged during the pendency of the trial. I am told that challan has already been submitted in Court. Learned trial Court shall proceed with and conclude the trial without unreasonable delay.

S.A./W-4/L Bail granted.

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