This single judgment shall also decide connected Cr. M.B.C. No, 386 of 2005 titled "Mst. Faiza Ayaz vs. Mst. Nayyar Bibi & 5 others" because both have arisen out of the same case where points of law and facts requiring determination are identical.
2. Arguments heard and record perused.
3. On 5.8.2005 at 7.30 a.m. complainant Faiza Ayaz reported to Police Station Cantt. Abbottabad that she is the resident of Murree Road Abbottabad. Mst. Nayyar her friend called her on 1.8.2005 to her house to help her in shopping for her marriage. Thus she left her house without telling any one to the inmates about her visit to the house of the former for the above purpose. On reaching the house of Mst. Nayyar accused, she was confronted with Mst. Nasim Akhtar mother, Ashraf father, Babr Ali the main accused and Waqar brothers of Mst. Nayyar. She further alleges that all the said accused persuaded her to marry Babar Ali but she refused, thus she was not allowed to return home. The accused threatened her with consequences including life threat in case of her refusal to marry Babar. She further states that on 2.8.2005 she was taken to the hospital, where after Nikah Nama was prepared on which her signatures were obtained and then she was taken back by the accused to their house and when her parents got knowledge they reached to the house of the accused and on her raising hue and cries, she was allowed to accompany her parents were in her house she narrated all the events to her parents. Her parents negotiated the matter with the accused for dissolution of her marriage but when the accused refused/avoided to do so then she and her parents decided to lodge the report. This report was first recorded in the daily diary S. No, 56 but after recording her statement under Section 164 Cr.P.C. the case was registered vide F.I.R. No, 921 on 5.8.2005 by Police Station Cantt. Abbottabad initially for crimes under Sections 419/420/468/471/342/506/34 PPC but later on Sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Sections 109/120-B/34 PPC were also added.
4. Accused-Respondents Nos, 1 to 4 in Cr. B.C.A. No, 386/2005 listed for hearing in motion are the brothers, sister and parents of Babar Ali accused-petitioner of the present case while Respondent No, 5 in the said petition is Maulana Mir Zaman the Nikah Khawahan who solemnized the marriage between the parties and registered it according to the Nikah Nama available on the record.
5. It was contended for Babar Ali accused-petitioner that complainant had entered into a valid Nikah which fact is proved from the Nikah Nama and that complainant does not disown her signature on the same but her plea is that her signatures were obtained by force which is an unbelievable proposition and that after falling in deep love with Babar accused she left her house and went to him on her own accord. The marriage between the parties was never kept secret by the accused as the Nikah was performed in the chamber of the local lawyer which was duly scribed by the Nikah Khawahan co-accused and was duly registered according to law. It was argued that before entering into Nikah with accused Babar, the complainant was produced before a lady doctor who had issued a certificate about her virginity and age both and during the entire process the complainant did not complain to any one amongst the public albeit she was having ample opportunity of raising hue and cries for her rescue in public places where she was taken. It was further added that complainant had also signed a duly sworn affidavit on 1.8.2005 confirming all the above cited facts and that uncle of the complainant namely Jehangir Khan while taking the complainant back to her house has given undertaking attested by two witnesses namely Umer Farooq and Jehanzeb that the complainant would have a choice to return to the accused Babar if wanted so. Thus the combined study of all these facts would show that proper and valid marriage/Nikah has taken place between Babar accused and the complainant. The subsequent statement given after 5 days of her return to her parents' house appears to be the result of pressure put on her by her parents and that if she is given a free choice she would admit her wedlock with Babar Ali accused.
6. Learned counsel for the complainant, however, was of the view that statement recorded under Section 164 Cr.P.C. shall have precedence over all other statements including the Nikah Nama and that the complainant was abducted in deceitful manner which attracts the provision. of Section 362 read with 365 P.P.C. and that offence under Section 11 of the Ordinance, 1979 is also duly constituted from the established facts on record. He argued that case of the accused-respondents in B.C.A. No, 386/2005 was not of further inquiry and bail granted to them is liable to be recalled while Babar Ali accused is the main character of the present crime is therefore not entitled to bail.
He argued that there is a complete mis-match between the parties as the complainant belongs to a highly placed family and is accustomed to royal-style of life while accused Babar Ali is a poor carpenter and the complainant being a graduate would have never opted for such a bargain on her life.
7. During the course of arguments it was disclosed by both the learned counsel for the parties that a suit for restitution of conjugal rights has been filed by accused-petitioner Babar Ali against the complainant while she has filed a suit for jactitation of marriage or in the alternative for dissolution of marriage and the Family Court presided over by Civil Judge-I, Abbottabad has taken cognizance of both the suits. This disclosure has changed the entire scenario visa vis the criminal case including the present bail petition and the connected B.C.A. No, 386 of 2005.
The learned counsel for the complainant was confronted with the principle of law laid down by the honourable Supreme Court in the case of "Shakir Muhammad and another vs. The State" (PLD 1985 S.C. page 357) and the other taken in the case of "Muhammad Azam and others vs. Muhammad Iqbal and others" (PLD 1984 S.C. 95) but he expressed ignorance about it.
8. In the case of Muhammad Shakir supra the defence plea was of valid Nikah with the female/victim and Nikah Nama was available. The apex Court held that if in the criminal trial, the rial Court had to decide the issue of validity of the marriage or otherwise then a complete and full inquiry should have been made determining the conflicting claims regarding the said issue by invoking the powers under Section 540 Cr.P.C. or better still if family case on the subject was pending its decision should have been avoided for a reasonable time. Such course having not been adopted by the trial Court in the case thus it was held by the apex Court that material defect remained in the trial and the judgment of conviction recorded by the trial Court and affirmed by the Federal Shariat Court was set aside with direction for re-trial to be held in terms of the decision of the apex Court in Muhammad Azam case supra. However, the accused charged there in were admitted to bail.
9. Without discussing the conduct and attitude of the complainant as narrated above lest it prejudice the mind of the family Court presently seized of the two suits one for restitution of conjugal rights and the other for dissolution of marriage, suffice it to say that unless the Court of competent jurisdiction (Family Court) conclusively determines the defence plea regarding the valid marriage allegedly having been solemnized between the parties the case would certainly remain open to further inquiry on criminal side and till such findings are recorded petitioner's case cannot be legitimately taken out of the ambit of sub-section (2) of Section 497 Cr.P.C. Thus on the strength of the principle laid down by the apex Court and in view of the peculiar facts and circumstances of the case petitioner cannot be denied the concession of bail to which he has become entitled as of right.
10. Accordingly, this petition is allowed. Accused-petitioner Babar Ali is granted bail in the sum of Rs, 2,00,000/- with two reliable sureties each in the like amount to the satisfaction of the Ilaga Judicial Magistrate while B.C.A. No, 386 of 2005 titled "Mst. Faiza Ayaz vs. Mst. Nayyar Bibi and 5 others" is dismissed in limine which is otherwise not entertainable on merits and available record.