Through this consolidated order, I intend to dispose of Crl. Misc. No. 3944-B/2006 and Crl. Misc. No. 3878-B/2006 as both the petitions have arisen from the same F.I.R.
2. All the petitioners seek post arrest bail in case F.I.R No. 61/06 dated 22.52006, under Sections 452/148/149/310-A PPC. registered with Police Station Budhla Santt, District Multan.
3. Prior to approaching this Court, the petitioners had approached learned Addl. Sessions Judge, Multan, for seeking post arrest bail, but said application was dismissed vide order dated 24.11.2006 which has prompted the petitioners to approach this Court.
4. Summarizing the facts of the case as narrated by Mst. Shazia Fazil, complainant of this case arc that her brother Rashid Mehmood had contracted marriage with Mst. Shaheen on 11.12.2004 against the wishes of her parents and after solemnizing the said marriage, both of them went to Karachi, Subsequently, said Mst. Shaheen had to return to her parents due to the decision of a Punchayat and thereafter, case F.I.R No. 167/04 dated. 13.12.2004, under Sections 10, 11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered at the instance of Muhammad Rafique, father of Mst, Shaheen, wherein, the present complainant and others were implicated as accused.
It has been further alleged in the F.I.R that Muhammad Rafique co-accused of the present petitioners and others threatened the complainant and her parents that their houses would be set on fire and thereafter he chalked out a plan in this regard and convened a fictitious Punchayat in pursuance of which they caught hold of Khalid Mehmood, brother of the complainant, whereafter, they barged into the house of the complainant and on gun point, they obtained her thumb impressions on some papers and on the basis of decision of Punchayat. complainant's Nikah was contracted with Jamshed (petitioner) in exchange of the Nikah of Mst, Shaheen with Rashid Mehmood. After the registration of the case, the same was investigated by the S.P. Investigation, Multan, who found 10 of the accused innocent and deleted Section 452 of P.P.C.
5. In support of this petition, learned counsel for the petitioners has submitted that Muhammad Tufail petitioner is not named in the F.I.R and as far as Ghulam Sarwar is concerned, he is an old man about 70 years of age and he has got no concern with both the parties; that there is unexplained and inordinate delay of 50 days in lodging the F.I.R; that from the facts of the case as narrated in the FIR, offence under Section 310-A PPC has not been made out;, that Section 452 PPC has been deleted by the S.P. Investigation, Multan. He adds that out of 17 accused, 10 have already been declared innocent and according to the above mentioned I.O. the occurrence has not taken place in the manner as alleged in the F.I.R. Lastly, he has contended that Muhammad Rafique co- accused has already been granted bail after arrest by this Court vide order dated 14.11.2006 and the case of the petitioners is at part with that of said co-accused and therefore, they are also entitled to bail on the basis of the principle of rule of consistency. He has further supplemented his contentions by arguing that the complainant has already filed a suit for jectitation of marriage challenging the disputed Nikah Nama, while Jamshed co-accused has filed suit for restitution of marriage against the complainant and the question of genuineness of Nikah Nama in question, would be decided by the concerned Judge Family Court, judgment of whom would be binding on the Court seized of the criminal proceeding. In this regard, he has relied upon Azam's case reported as P.L.D. 1984 S.C. 95.
6. In support of the petition bearing Crl. Misc No. 387S-B/06, learned counsel for the petitioners has contended that Jamshed petitioner is behind the bars since 6.7.2006 while Taufiq petitioner is languishing in jail since 22.6.2006 and the bail cannot be refused as a matter of punishment.
7. Learned counsel for the complainant has contended the Muhammad Tufail petitioner is fully involved in this case as he had prepared and signed the Nikah Nama and singed the same also As fat as Muhammad Sarwar and Muhammad Taufiq petitioners concerned, their names are also duly mentioned in the Nikah Nama as witnesses, and Jamshed petitioner is the main accused of the case. As far as the delay is concerned, he has contended that prior to the registration of the case, the complainant had run from pillar to post for registration of case and the same could not be registered till the intervention of some higher authorities. He adds that all the petitioners have been found guilty by the I.O. Lastly, he has contended that on the one hand validity of Nikah Nama dated 22.2.2006 is being disputed and on the other hand on the basis of the same Nikah Nama, Jamshed petitioner has filed a suit for restitution of conjugal rights, and as such he cannot claim bail on that ground.
8. After hearing the arguments of both the sides and going through the documents appended with both the petitions minutely, it has been straightway noticed that though the alleged Nikah Nama was executed on 22.2.2006, yet the F.I.R was registered with the delay of about three months. It has been further noticed that in the whole body of the F.I.R which is a very lengthy document, neither the date of convening of fake Punchayat has been mentioned nor the date and time of alleged occurrence has been mentioned. It has also been noticed that the names of the witnesses of the alleged occurrence also do not find mention in the F.I.R. During the investigation, offence under Section 452 P.P.C. has been deleted and out of 17 accused, 10 have been found innocent by the officer of the rank of S.P. Muhammad Rafique co-accused who happens to be the father of the accused namely Jamshed has already been granted bail by this Court vide order dated 14.11.2006 passed by my learned brother M. A. Shahid Siddiqui, J, while deciding Crl. Misc. No. 3168-13/06. While accepting the said bail application, the observation was made by this Court to the following effect:-- "The manner in which the occurrence has taken place appears to be improbable. The offence under Section 310-A PPC also does not appear to have been made out."
The said order was never challenged before the Hon'ble Supreme Court of Pakistan, and therefore, I do not find any valid reason to differ with the said findings.
9. It goes without saying that in the back drop of the run away marriage of Mst. Shaheen with the brother of the complainant, hostility exists between the parties. The complainant herself is accused in the said case. As the offence under Section 452 PPC has already been deleted, this shows that the occurrence did not take place in the manner as alleged by the prosecution. Apart from the findings of this Court returned in the aforementioned Cr1. Misc. No. 3168-B/2006, I am also of the view that the question of the applicability of Section 310-A PPC to the facts of the present case, would be a moot point in this case. Prima facie, it appears that Section 310-A PPC applies to the situation, where the parents or the guardians of a female gives her in marriage in Badl-e-Sulah.
So, the persons who gives a female in marriage or otherwise in Badl-e-Sulah, can be punished under this section. For the present without delving deeper into this question, it is simply observed that the question as to whether Section 310-A PPC would be applicable in such like cases, would be requiring further inquiry.
10.Moreover, the genuineness of the disputed Nikah Nama dated 22.2.2006 has been challenged by the complainant herself before the Judge Family Court by way of filing a suit for jectitation of the marriage and on the dint of the same Nikah Nama, Jamshed petitioner has sought, restitution of conjugal rights. Both the suits are admittedly pending adjudication before the Judge Family Court, Multan. In view of the famous Azam's case reported as P.L.D. 1984 S.C. 95, the findings of the said Court would be binding on the Court deciding the criminal case on the basis of the FIR No. 61/06. Therefore, the case of further inquiry has been made out in favour of the petitioners on this score also. Jamshed (petitioner) is behind the bars since 6.7.2006, while Muhammad Taufiq petitioner is behind the bars since 22.6.2006. Likewise. Muhammad Tufail and Ghulam Sarwar are languishing in jail since 9.11.2006. It is a settled law that the bail cannot be refused as a matter to punishment. Consequently, both the bail applications are accepted and the petitioners are granted the post arrest bail provided they furnish their bail bonds in the sum of Rs.2,00,000/- (two lac), each with one surety each in the like amount to the satisfaction of the trial Court.
11.Before parting with the order, it is clarified that the observation made in this bail order as usual are tentative in nature and trial Court would be at liberty to decide the case uninfluenced by this order.