Petitioners seek post-arrest bail in case FIR No, 46 dated 11.2.2006 under Section 16/10 (3) Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979) Police Station Kameer, District Sahiwal.
2. The petitioners who are brothers inter se have been involved in this case for the alleged abduction and commission of zina with two sisters namely Mst. Nasim Bibi and Mst. Sajida Bibi. The FIR was got lodged on 11.2.2006 by the father of above mentioned two girls alleging that both the petitioners enticed away his daughters who at the relevant time were in possession of certain articles, cash amount and ornaments, etc. Both the petitioners were arrested on 10.3.2006, when both ,the sisters voluntarily returned to their parents. However, petitioners moved Crl. Misc. No, 183- H/2006 titled 'Muhammad Amjad vs. SHO, etc." and Crl. Misc. No, 184-H/2006 titled 'Muhammad Arshad vs. SHO, etc." at the principle seat of this Court seeking recovery of both the sisters from the custody of their father on the ground that both had contracted marriages with them and were now being kept in the illegal confinement. Both the said petitions were dismissed on the statements of Mst. Nasim Bibi and Mst. Sajida Bibi to were effect that they were residing with their father voluntarily and were not being illegal confined, they also denied their Nikahs with the petitioners.
3. It is submitted by learned counsel for the petitioners that in fact Mst. Nasim Bibi and Mst. Sajida Bibi contracted marriages with the petitioners with their free consent and will through Nikah Namas dated 22.1.2006; that they were forcibly taken away by their father Mubarak Ali and under whose pressure they resiled from their marriage with the petitioners, whereas both the girls contracted marriage with the petitioner. It is next argued that petitioners are behind the bars since 10.3.2006 thus can neither defend their Nikahs nor could file any suit in the Family Court in order to establish their Nikahs in the light of the law declaring by Hon'ble Supreme Court of Pakistan in the case 'Muhammad Azam vs. Muhammad lqbal and others" (PLD 1984 Supreme Court 95 Shariat Bench). It is further argued that investigation is complete and despite submission of challan the trial has not yet commenced, therefore, in the light' of the law declared in the cited judgment, petitioners are entitled to grant of bail for establishing their Nikah with the above mentioned girls despite their denied about the same.
4. On the other hand, learned counsel for the complainant as well as state have opposed this bail application by arguing that since both the sisters have expressly denied their allegedly Nikahs with the petitioners, therefore, the law declared by the Hon'ble Supreme Court in Azam's case is not applicable to the facts of the present case and since the challan is with the Court the trial can be concluded without delay, therefore, petitioners are not entitled to the grant of bail.
5. Arguments considered 'Record perused.
6. Admittedly, the incident took place 31.1.2006 but the FIR was got registered on 11.2.2006 without any satisfactory explanation for delay. The question as to whether Nikahs of the petitioners with the above mentioned girls took place with the free consent of Mst. Nasim Bibi and Mst. Sajida Bibi cannot be determined during these criminal proceedings and the only forum competent for this purpose is Family Court as held in the cited judgment. Further it is not possible for the petitioners to establish their Nikahs while remaining behind the bars. The mere fact that both the girls have now denied their Nikahs with the petitioners after their restoration to the complainant does not mean that Nikah claimed by the petitioners never took place unless findings to this effect are given by the Family Court after recording of evidence of both the parties. When questioned, learned counsel for the complainant failed to satisfy the Court as to whether Secretary to the Union Council where both the Nikahs were allegedly registered was joined by the Investigation Officer to collect evidence as to whether said Nikahs were infact reported and got registered with the said Union Council or not.
This fact can also be determined by the Family Court after recording of evidence. The petitioners are behind the bars since 10.3.2006 and by keeping them behind the bars they cannot be expected to file suit in the Family Court and obtain verdict to this effect in the light of cited judgment of the Apex Court. I am therefore, satisfied that petitioners have succeeded in making out a case for grant of post arrest bail. Resultantly, this bail application is allowed and petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of R s. 1,00,000/- each with one surety each in the like amount to the satisfaction of learned trial Court.
7. it is however, made clear that on their release the petitioners shall within a period of thirty days file a suit before the competent Court of jurisdiction seeking decree about the validity of their Nikahs with both the sisters and on filing of such suit the proceedings before the trial Court shall continue but final verdict shall not be given till decree of the Family Court. However, in case the petitioners fail to file the suit before Family Court of competent jurisdiction within one month, the trial Court shall be at liberty to decide the case after recording of evidence in accordance with law.