' CH. IFTIKHAR HUSSAIN, J.---Petitioner Aamir through the instant petition has prayed for post arrest bail in case F.I.R. No,36 registered under section 365-B, P.P.C. With Police Station Wahova, District Dera Ghazi Khan on 12-4-2008. Later on the police have added the offence under section 376, P.P.C.
In the same.
2. Briefly the prosecution case as per the F.I.R. Is that Nikah of Mst. Farrah Qasim, the daughter of complainant Ghulam Qasim was performed with one Kashif Saghir but her Rukhsati had not yet taken place. On 7-3-2008, she went to take tuition in the house of Atta Muhammad but did not return therefrom. Later on, he (complainant) came to know that she was abducted by Atta Muhammad, Aamir and Muhammad Hanif for zina.
3. It has contended on his behalf that he has falsely been roped in; that in fact the alleged abductee of her own accord had eloped with him and thereafter they entered into valid Nikah with each other on 22-3-2008 and the copy of their Nikah Nama is available with this petition; that she had remained in Ansar Barni Trust, Karachi; that the authorities there had informed her parents and her mother went there and brought her back; that after her return, her parents have pressurized her to disown her Nikah with him and make statement against him; that ultimately with the good offices of the authorities of the said Trust, he had divorced her on 15-4-2008 and the divorce deed is also available with this petition; that she had been living with him as his legally wedded wife and it was with her free will and consent being sui juris and he or anybody else had not at all abducted or enticed her away for illicit intercourse; that her no Nikah with afore-said Kashif Saghir had ever been performed and this was so deviced to get the case registered of her abduction; that in the investigation, one of her alleged abductors, namely Atta Muhammad, who is his father, has been declared innocent and this suggests that the story of her abduction is not with truth and it rather was an elopement; that she of her own accord has sworn an affidavit admitting her Nikah with him and rather her no Nikah with afore-said Kashif Saghir and all these facts heavily suggest that his case is one of further inquiry into his guilt; that he is behind the bars for the last about 4/5 months and so not required for any further purpose of the investigation; and that in such circumstances, to keep him in jail would serve no useful purpose of the prosecution.
4.On the other hand, the learned D.P.G. Has opposed the petition on the ground that he is very well named in the F.I.R.; that he along with others has abducted the said daughter of the complainant and 5.Thereafter had been subjecting her to zina-bil-jabr, while she was already married to one Kashif Saghir prior to her alleged Nikah with him; and that she in her statement under section 161, Cr.P.C.
Has implicated him with the allegation of her abduction and zina-bil-jabr with her and obtaining her thumb impression and the signatures under coercion on some papers and thereafter converting the same into a Nikah Nama.
6. The complainant has emphatically submitted his daughter had been abducted by him and while her Nikah with the said other person had already been performed and she had not voluntarily entered into Nikah with him and he rather, has committed forgery in that behalf.
7. I have carefully considered the submissions made on behalf of the parties and perused the record.
8. Few things are apparent from the face of the record. Firstly, that the complainant in the F.I.R. Has alleged that Nikah of his said daughter had already been performed with one Kashif Saghir. He has further alleged therein that Aamir (petitioner) and his companions named in the F.I.R., have abducted her for the purposes of zina with her.
9. Contrary to that, the learned counsel for the petitioner has asserted that she being sui juris of her own accord has eloped with him and voluntarily has entered into a valid Nikah with him and thereafter, had been living with him as his wife and so there is no question of either of her abduction or zina with her. It has also been submitted on his behalf that she has remained in Ansar Barni Trust, Karachi and the authorities there have rang her parents and in consequence thereof, her mother had gone there and brought her back and thereafter, her family has forced her to change her stance and make a statement against him.
' I don't want to dilate much upon these different stories of the parties at this stage as it may not, be prejudicial to either of them at trial. The fact but remains that it is a case of two Nikah Namas. One is alleged by the prosecution and the other by the petitioner/accused. He has also appended to the instant petition the copy of a divorce deed executed from him in her favour in the said Trust on 15-4-2008. It has vehemently been contended by his side that her signatures are affixed on such deed and so, she is party to the same and this position, if seen would clearly make out that there existed Nikah between him and her. I again would say here that I don't want to discuss this matter at much length as it definitely would prejudice the case of either of the parties at stage to come ahead in the case. However, it is required to be seen here that which of these two Nikah Namas is correct and which not. This question becomes more significant in presence of divorce deed annexed to the petition. It is also to be seen at trial that if in the given circumstances, it was a case of elopement or abduction. The question of correctness of either of these Nikah Namas is also to be determined then.
10. I may mention here that I had asked the complainant that if he can produce his daughter before this Court to verify from her of her alleged signatures or thumb impressions on the said divorce deed. He but has denied to do so as according to him, it is difficult for him to bring her here now.
11. I have also found on the record an agreement purported to be executed on 17-4-2008, by her mother Mst. Sakina Kausar, perhaps in favour of Ansar Barni Trust. The same is to the effect that she was informed by the authorities there that her daughter is with them and they may take her back and on the same she had gone there and had taken her back. The living of the lady i,e, the alleged abductee, there at least suggests one thing that she had gone there under some apprehension and remained there with her free will.
12. All these facts leave me to the impression or belief that the instant case against him (petitioner) definitely requires further inquiry into his guilt to the effect that if her stated marriage with him was with her free will and that they had been living together as husband and wife. The same, thus is covered under subsection (2) of section 497, Cr.P.C.
13. He is stated to be behind the bars for the last 4/5 months and so, not required for any further purpose of the investigation.
14. In these circumstances, I find that case for his enlargement on bail has been made out.
Resultantly, I accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs.100,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of the learned Additional Sessions Judge, Tonsa Sharif.
15. I may observe here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.