' ABDUL SATTAR GORAYA, J.--- An indictment stands registered against the petitioner vide F.I.R.
No,392 dated 22-8-2008 under sections '380, 365-B, 363, P.P.C. Pursuant to the order passed by the Justice of Peace on the statement of Muhammad Athar Khan, a brother of the alleged abductee.
2. The main hub of the case of the prosecution is that she was previously entered into Nikah with Riaz Ahmad. Rukhsati had yet to take place. Mst. Rashida Siddique was a teacher in the private school. It is alleged that petitioner was keeping an eye upon the sister of the petitioner and he was admonished to behave. The day came when Mst. Rashida Siddique took away the gold ornament and an amount of Rs,23,000 from the house of the parents.
3. Learned counsel for the petitioners states that Mst. Rashida Siddique is a legally wedded wife of the petitioner No,1 and she of her own accord and free will and without any coercion from any side entered into Nikah with petitioner No,1 on 22-8-2007. He referred to the Nikahnama registered under provisions of the Family Laws Ordinance with the Local Council. Further states that the Islamic Law leads to legitimacy and there is provision in the Constitution which gives a definite assurance that the matrimonial life shall be protected.
3-A. Learned D.P.-G assisted by the learned counsel for the complainant has referred the Nikahnama dated 20-4-2007 which is earlier in time and that the said Nikahnama has also been registered with the Union Council. Further states that case of the petitioner is covered by embargo contained in subsection (1) of section 497, Cr.P.C. And in such like cases the view of the High Court is clear in a case Allah Yar v. The State 2008 PCr.LJ 1451 wherein my learned brother Khurshid Anwar Bhindar, J. Disallowed the bail. Further adds that the learned counsel for the petitioner has not approached the Court of first instance and has directly moved this application for anticipatory bail which is not maintainable. Reference has been made to Shamrez Khan v. The State 1999 PCr.LJ 74 4 . I have given conscious thought to the arguments addressed by both the learned counsel for the parties and perused the record with their able assistance. On a query made by this Court, the Investigating Officer stated that the Nikahnama which is earlier in time has been sent to the Handwriting Expert in terms of Article 59 of the Qanun-e-Shahadat Order, 1984 for comparison of the signatures appearing on the said instrument. As far the applicability of section 381; P.P.C. Is concerned, suffice it to say that the abductee at the relevant time was a member of the family and ex facie the provisions of section 380 are not attracted in the case in hand. As far as the offence under section 363, P.P.C. Is concerned, that the alleged abductee also took away along with her Mst. Maria of the age of 11 years from the school, the Investigating Officer states that she was not recovered from the custody of the petitioner and instead local Zamindar of the area produced her before the police. In respect of serious objection raised by the learned counsel for the complainant that the petitioner has directly approached this Court and the learned Sessions Judge had a concurrent jurisdiction in the matter and by-passing the settled procedure he has invoke the jurisdiction of this Court. In a similar case, this question came up for consideration in Shabir Ahmad Wattoo v. The State 1983 PCr.LJ 2014 where it has been laid down that this question should be seen at the time of the admission of the bail application and if notice has been issued and accused petitioner had been granted ad-interim bail, it will be a futile exercise to send the petitioner back before the Court of first instance. In this case the notice was issued on 3-2-2009, by my learned brother Syed Shaheen Masud Rizvi, J. While granting ad interim bail to the petitioners to remain operative till 20-2-2009, my learned brother had considered the reasons offered by the learned counsel for petitioner, therefore, at this stage when the whole case has been heard I am not inclined to send the petitioners back to the learned Sessions Judge. The fact that the Nikahnama which is reportedly is earlier in time is under scrutiny and so far the police has not recorded any definite finding. Petitioner No,2 is a wife of the petitioner No,1, it does not believe to reasons that the petitioner No,2 had participated in the occurrence as in our society the woman cannot afford to live with the co-wife. In my considered view this is a fit case in which anticipatory bail should be granted.
5. For what has been stated above, bail already granted to their petitioner vide order dated 3-2- 2009 is hereby confirmed. Observations made hereinabove are tentative in nature will not affect the trial.