' MUHAMMAD JEHANGIR ARSHAD. J.---Through this single order I proceed to dispose of two bail applications i,e, (Criminal Miscellaneous No,2062-B/2006 as well as Criminal Miscellaneous No,2568-B/2006, as both arise out of one and the same F.I.R.No,62 dated 20-5-2006 under section 310-A,P.P.C. Registered with Police Station Sakhi Sarwar, District Dera Ghazi Khan.
2. According to the contents of F.I.R. The accused (petitioners of both these applications) while sitting in a PANCHAYAT convened for decision of alleged abduction of Mst. Zubaida daughter of Allah Diwaya (one of the petitioners in these petitions) at the hands of Abdul Ghafoor brother of Manzoor Hussain (complainant), gave a verdict that as by abducting Mst. Zubaida, Abdul Ghafoor had violated centuries old tradition of Baluch Tribe, thus both were guilty of KALA-KALI, therefore, Soba father of said Abdul Ghafoor would give two females of his family to the father of Mst.
Zubaida, the alleged abductee, as compensation and in execution of the said decision Soba gave Nusrat Bibi, his daughter, in marriage with Shoukat Hussian son of Allah Diwaya and brother of Zubaida abductee and said marriage was also performed on 27-11-2005 according to the rites of the area, whereas, with regard to giving of second female, it was decided that Mst. Salma Bibi, daughter of Mewa uncle of the complainant Manzoor Hussian would be given in marriage with Akhtar Hussain another son of Allah Diwaya. As such, according to the F.I.R. All these persons committed an offence under section 310-A, P.P.C. Petitioners in Criminal Miscellaneous No,2062- B/2006 are the family of Allah Diwaya father of Mst. Zubaida Bibi, the alleged abductee, whereas petitioners in Criminal Miscellaneous No,2568-B/2006 are the members of PANCHAYAT. All the accused were arrested on 22-5-2006 and are now in judicial lock up waiting for trial after submission of challan.
3. It is argued by Malik Muhammad Saleem, Advocate representing petitioners in Criminal Miscellaneous No,2062-B/2006, that it was in fact an exchange marriage and thus there is no force in the story set up by the prosecution with regard to giving two females as Badl-e-Sulh for alleged abduction of Mst. Zubaida, rather it was a contract entered into by Soba father of Abdul Ghafoor who had allegedly abducted Mst. Zubaida, to give his daughter in exchange of marriage between Abdul Ghafoor and Mst. Zubaida. It is further submitted that question of vicarious liability of the persons with regard to commission of offence under section 310-A, P.P.C. Is one of further inquiry and that in case Mst. Nusrat Bibi was minor when she was given in marriage with Shaukat, the same at the most would be an offence under Child Marriage Restraint Act and not an offence under section 310-A, P.P.C. It is next argued that marriage between Mst. Nusrat and Shoukat took place on 27-11-2005 whereas, F.I.R. Was got lodged on 20-5-2006 i,e, after more than six months without any explanation about delay. The learned counsel contends that Soba being the father as well as natural guardian could give Mst. Nusrat her daughter in marriage and in case the said marriage was performed without the consent of Mst. Nusrat, the option was with her to file a suit and get the marriage dissolved.
4. Ch. Shoukat Ali Zahid, Advocate representing the petitioners in Criminal Miscellaneous No,2568- B/2006 adopted the above arguments of learned counsel for the petitioners in connected bail application.
5. On the other hand, Mr. Qamar-uz-Zaman Butt, Advocate for the complainant assisted by learned State Counsel, opposed these bail applications by arguing that petitioners have committed not only a crime against society but also an act punishable under section 310-A, P.P.C. Which has been specifically incorporated in the Statute in order to eliminate such like social evils, therefore, the accused have also violated the law knowingly, hence are not entitled to concession of bail.
6. I have, considered the arguments of learned counsel for the parties and gone through the contents of the F.I.R.
7. The question whether in the light of contents of the F.I.R. The ingredients of section 310-A, P.P.C.
Are made out from its bare reading or the same also requires other material which can only be determined after recording of evidence. Although the word "Badl-e-Sulh" is not defined in Pakistan Penal Code yet in the context of section 310-A, P.P.C. The same be construed as giving or accepting something in compensation of right of Qisas and right of Qisas always arises at the time of commission of some offence. A perusal of the F.I.R. Although does indicate that PANCHAYAT was convened for decision of alleged abduction of Mst. Zubaida daughter of Allah Diwaya at the hands of Abdul Ghafoor brother of Manzoor Hussain complainant and son of Soba one of the accused (who is behind the bars and has not applied for his bail), yet the fact remains that no FI.R. Has been got lodged with regard to commission of alleged abduction till date and thus the decision made by the said PANCHAYAT in the light of contents of the F.I.R. Cannot be strictly construed as one in lieu of compensation for commission of abduction of Mst. Zubaida. This fact can tentatively be considered as one bringing the case of prosecution within the ambit of section 310-A, P.P.C. Which can only be built up through evidence and for that matter the most relevant witness would be the abductee namely Mst. Zubaida who till date has not even opted to come forward to support the story of her alleged abduction. This fact also has persuaded me to hold the case of the petitioners as one of further inquiry. Even otherwise, the investigation is complete and challan has been submitted in Court, the petitioners who are several in numbers and cannot be kept behind the bars indefinitely as the same would amount to punishing them without trial which is against the law declared by Hon'bie Supreme Court of Pakistan in the ease Abdul Malik v. The State PLD 1968 SC -349.
Further bail in non-boilable offence though can't be claimed as a right yet the fact remains that in the light of law declared by Hon'ble Supreme Court of Pakistan in the case Tariq Bashir and 7 others v. The State PLD 1995 SC 35 the fact that offence does not fall within prohibitory clause can be considered as a weighing factor for allowing post arrest bail.
8. For what has been discussed above, both these applications are allowed and the petitioners are admitted to post arrest bail on their furnishing bail bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of learned trial Court.