' MUHAMMAD FARRUKH MAHMUD, J.---Muhammad Nadeem alias Nadeem son of Muhammad Sadiq has sought post-arrest bail in case F.I.R. No,186 registered at Police Station, Kot Samabah on 6-8-2005 for offences under sections 11/10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979.
2. According to F.I.R., Nadeem Ahmad, petitioner developed relations with Mst. Fauzia Bibi daughter of the complainant. He was stopped from visiting the house. When the complainant and his other family members woke up in the morning on 31-7-2005, they discovered that Mst. Fauzia Bibi was not present in the house. During search the P.Ws. Informed the complainant party that Mst. Fauzia Bibi was seen in the company of petitioner and other accused. After attempting in vain to get back her daughter, Mst. Kulsoom Bibi reported the matter to the police on 6-8-2005.
3. Learned counsel for the petitioner has submitted that petitioner has committed no offence, as he entered into marriage with Mst. Fauzia Bibi with her free consent. He has placed reliance on Nikahnama (annexure 'C' to the petition) and statement of Mst. Fauzia Bibi recorded by the Magistrate under section 164, Cr.P.C. Learned counsel appearing on behalf of the complainant have vehemently opposed this application and have argued that the Nikahnama was not genuine; that Mst. Fauzia Bibi has filed a suit seeking jactitation of marriage which is pending before the learned Judge, Family Court, Rahimyar Khan; that according to school leaving certificate, Mst. Fauzia Bibi was 13 years old at the time of abduction and, thus, her consent could not be considered valid.
Learned counsel for the complainant brought out a photocopy of Nikahnama from his pocket and has stated that Nikah Khawan of Union Council No,74/F, Khanpur, had refused to enter the Nikah for the reason that Mst. Fauzia Bibi, the alleged abductee, was not adult. However, the above noted Nikahnama is not part of the police record so far. The learned counsel relying on the same Nikahnama have submitted that on 30-7-2005, the Nikah Khawan of UC No,74/F, Khanpur, refused to enter the Nikah, while the petitioner has placed reliance on Nikahnama which was registered on 30-6-2005. According to the learned counsel, if the Nikah had already been registered, then there was no need to approach another Nikah Khawan.
4. I have heard the learned counsel for the parties and have also gone through the relevant record of the case.
5. It has been noticed that it was stated in the F.I.R. That the petitioner developed relationship with Mst. Fauzia Bibi, the alleged abductee, and for that reason, the petitioner was stopped from visiting the house of the complainant. The complainant is not stranger in this case. She is the real mother of the alleged abductee. The abductee was examined by a Medical Board for the purpose of determination of age and according to the opinion of the Board, Mst. Fauzia Bibi was about 16 years of age. Interestingly, the examination of Mst. Fauzia Bibi was conducted after obtaining her consent and in the column of name and address, Mst. Fauzia Bibi has shown herself to be the wife of Nadeem petitioner. It is nobody's case that the abductee had not attained puberty at the time of abduction and, this, under the provisions of Hudood Ordinance, she cannot be termed as a minor.
So far Nikahnama dated 30-6-2005, according to which Mst. Fauzia Bibi, married with the petitioner with her free consent, is in field. There is nothing on record to show that the Nikahnama was fake except its disowning by Mst. Fauzia Bibi after joining her parents. It is also noteworthy that Mst.
Fauzia Bibi along with her counsel Mr. Javed Iqbal Bajwa, Advocate, Rahimyar Khan, appeared before Area Magistrate, Sadiqabad, and on her insistence, her statement under section 164, Cr.P.C.
Was recorded on 24-9-2005. Before recording the statement, the Magistrate ensured that the statement was being made voluntarily and that Mst. Fauzia Bibi was well aware of the repercussions of the statement. In that statement she clearly stated that she was not abducted by anyone and had contracted marriage with the petitioner with her free-will, as her mother complainant in the case wanted to marry her with an old person. The statement of Mst. Fauzia Bibi was recorded under section 161, Cr.P.C. On 11-10-2005 after she joined her mother, wherein she admitted that she was taken to the Courts and that she had thumb-marked the Nikahnama albeit under a threat of life.
6. In the above noted circumstances, the allegations levelled against the petitioner need further probe and inquiry within the purview of subsection (2) of section 497, Cr.P.C. Thus, I allow this petition and admit the petitioner to bail subject to his furnishing bail bond in the sum of rupees fifty thousands with one surety in the like amount to the satisfaction of the learned trial Court.
7. However, it is made clear that the observations made by this Court are only tentative in nature and would not prejudice the case of either party.