' CH. IFTIKHAR HUSSAIN, J.--- Petitioner Muhammad Zahoor Ahmad through the instant petition has sought for post-arrest bail in case F.I.R. No,332 registered under section 365-B, P.P.C. With Police Station Sadar, Sargodha on 3-6-2009. Later on the police have added section 376, P.P.C. In the same.
2. Briefly the allegation against him as per the F.I.R. Is that on 11-5-2009, he along with others had taken away Mst. Khatija-tul-Kubra, 25/26 years old daughter of the complainant and thereafter committed rape with her and took her naked photographs.
3. It has been argued on his behalf that he has falsely been roped in; that Mst. Khatija-tul-Kubra being sui juris of her own ,accord had entered into valid Nikah with him on 30-12-2008 and it was never under coercion or against her will; that she thereafter at the instance of his family has resiled from her own previous stand; that she after Nikah had been living with him as his wife and as a result of the same became pregnant and it is not as a result of rape by him; that she has brought a suit for dissolution of marriage against him, whereas the suit for restitution of conjugal rights against her and both these are pending adjudication before a competent Family Court; that her Nikah with him was at least more than five months prior to the registration of the present case; that there is delay of about twenty-three days in lodging of the F.I.R., which speaks of the concoction, deliberation and consultation on the part of the complainant and the same casts doubt on the veracity of her version; that he is behind the bars for the last about three months; and that he is previous non-convict.
4. On the other hand,. The learned Additional Prosecutor-General has opposed the petition on the ground that although there is delay in the lodging of the F.I.R. But it in such-like cases is not fatal to the prosecution case; that he had taken away the alleged abductee and thereafter, committed rape with her and also obtained her naked photographs and had she been his legally wedded wife, he then could not have taken her such photographs and this' aspect heavily reflect that she was taken away by him forcibly and thereafter subjected to sexual violence; that the plea of valid Nikah taken by him is absolutely made up one and not based on any reality and this so has been found in the investigation; that the police later on have added section 376, P.P.C. In the instant case; that the alleged offence does fall within the prohibitory clause of section 497(1), Cr.P.C.; and that he is sufficiently connected with the crime alleged.
5. I have carefully considered the submissions made on behalf of the parties and perused the record.
6. As is obvious from the above position that there is allegation against him of forcibly taking away Mst. Khatija-tul-Kubra, the daughter of the complainant, and therefore, subjecting her to rape and taking her naked photographs. As against the same, he has raised the plea of his valid Nikah with her and neither any abduction nor her taking away forcibly or any other of the act of the type. He in support of his plea has placed reliance upon the Nikahnama dated 30-12-2008. The same shows that her marriage with him was solemnized on 30-12-2008. It may be mentioned here that she had also brought a suit for jactitation of marriage against him before a competent Family Court and against the same he had suit for conjugal rights against her mentioning her to be his legally wedded wife. According to the learned counsel for the petitioner both these suits are pending adjudication before a Family Court at Sariodha.
7. This shows that the question of validity or otherwise of her stated Nikah with him is sub judice before a competent Family Court. Till such time, any verdict is delivered therefrom in respect of the same, I have the least hesitation to say that his case definitely falls within the ambit of further inquiry. The same, therefore, is covered under subsection (2) of section 497,Cr.P.C. Calling for further inquiry into his guilt.
8. He is stated to be behind the bars for the last about three months. In this view of the matter, I accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.
9. However, it is clarified 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.