MUHAMMAD FARRUKH MAHMOOD, J.-The petitioners have sought their pre-arrest bail in case FIR No. 211 registered at Police Station Kot Samabs on 21.8.2003 for offences under sections 16/10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. Briefly, the relevant facts as given in the FIR are; that Mst. Khalida Parveen daughter of the complainant was living in the house of her father despite the fact that she had been given in Nikah to one Muhammad Sale on 13.5.2002. During her stay in complainant's house Muhammad Boota Tabassam petitioner, allegedly, developed intimacy with Mst. Khalida Perveen and was stopped by the complainant to visit the house. A month prior to registration of FIR the complainant left his house for Rahimyar Khan and when he returned Mst. Khalida Parveen had decamped along with cash and ornaments. During search the PWs informed the complainant that Mst. Khalida Parveen was seen in the company of Muhammad Boota Tabassam petitioner.
3. The learned counsel for the petitioners has submitted that the petitioners are husband and wife and in that regard Nikah Nama was registered on 3.8.2002 and that except for petitioner's admission of being husband and wife there was no other incriminating evidence available on the record of the case implicating the petitioners. He has lastly argued that the petitioners Mst. Khalida Parveen was never married to Muhammad Alim and Nikah Nama dated 13.5.2002 was fake and bogus. Conversely, the learned counsel for the complainant as well as the learned counsel for the State have opposed this application and have argued that the petitioners have been named in the FIR; that the complainant who is father of Mst.- Khalida Parveen had no ulterior motives to involve the petitioners in a false case; that the Nikah as alleged in the FIR was dated 13.5.2002 and in the presence of that Nikah second Nikah has no value rather it is a proof of criminality of the petitioners; that the petitioners did not surrender to the police after their bail application was dismissed by the learned Trial Court.
4. I have heard the learned counsel for the parties arid have also gone through the record of the case, lt has been noticed that the petitioners have, joined the investigation and their statements have been recorded. The matter was reported to the police after a delay of one month; the petitioner Mst. Khalida Parveen does not own her Nikah with Muhammad Salim and she claims to be wife of co- petitioner Muhammad Boota Tabassam; as per relevant record so far, the police has not come to any conclusion as to which Nikah Nama was genuine; even the statements of Nikah Khawan and the witnesses of marriage have not been recorded by the investigating officer, ln the circumstances, the claim of the petitioners that they are husband and wife cannot be used as evidence against them. As far as the argument of the learned counsel for the prosecution relating to the surrendering of the petitioners to the police is concerned, suffice it to say that they have surrendered themselves before a Superior Court and by any stretch of imagination cannot be termed as absconders. Astonishingly, the statement of Muhammad Salim with whom Nikah has been alleged in the FIR has not been recorded by the investigating officer so far. This highly reflects on the working of the investigating officer. Considering all the circumstances I confirm the ad interim pre-arrest bail already granted to the petitioners vide order dated 8.9.2003 passed by this Court subject to furnishing their fresh bail bonds in the sum of Rs. 10,000/- (Rupees ten thousand) each with one surety each in the like amount to the satisfaction of the Trial Court, within a week.
5. A copy of this order would be sent to the District Police Officer, Rahimyar Khan who would hold an inquiry and submit report within three weeks to the Deputy Registrar (Judl) of this Bench as to why investigation of this case was not completed as envisaged by the provisions of section 173, Cr.P.C, and the guidelines laid down by the Honourable Supreme Court in Hakeem Mumtaz's case (PLD 2002 SC 590).