' SHAHID HAMEED DAR, J.---Through this application Naseer Ahmad and Nazeer Ahmad seek bail after arrest in case F.I.R. No,256 of 2010 dated 23-3-2010 under section 365/B, P.P.C. Registered at Police Station, Pindi Bhattian, District Hafizabad on the complaint of Manzoor Ahmad.
2. Precisely, the prosecution case is that Mst. Mafia Bibi aged 13/14 years daughter of the complainant went to the fields to answer the call of nature at 2-00 p.m on 19-3-2010, in the meantime Naseer Ahmad (petitioner) armed with firearm along with his two unknown companions abducted her at gunpoint which was witnessed by Ghulam and Ahmad P.Ws.; the complainant learnt about the occurrence after he returned to his house in the evening.
3. Learned counsel for the petitioner contends that there is unexplained delay of four days in the lodgment of F.I.R.; Mst. Mafia, the alleged abductee being sui juris had contracted marriage with Ghulam Shabbir, the real brother of the petitioners but he has not been implicated in this case with mala tide intention of the complainant; Mst. Mafia Bibi, the alleged abductee does not support the story of the F.I.R. As she was produced before the learned Judicial Magistrate by the police for her statement under section 164, Cr.P.C. On 15-4-2010, wherein she categorically stated that she had not been abducted by anyone and being sui juris she had solemnized marriage with Ghulam Shabbir, with her free will and consent; she also appeared before the learned Addl: Sessions Judge, Pindi Bhattian and submitted her sworn affidavit to the same fact wherein she reiterated her version as she did before the learned Magistrate; the occurrence contained in the F.I.R. Was found false during the course of investigation and a cancellation report had been prepared by the police under section 173, Cr.P.C. Which was not agreed to by the learned Magistrate; the petitioner was arrested on 29-3-2010, the investigation is complete and his further incarceration is of no consequence to the prosecution's case; the attending circumstance of the case require further probe in the guilt of the petitioner within the scope of section 497(2), Cr.P.C. Relies upon case Mst.
Zeenat Bibi and another v. The State and 2 others (2005 PCr.LJ 1312).
4. Learned Deputy Prosecutor-General opposes the grant of bail and contends that the petitioners are specifically nominated in the F.I.R. With the allegation that they being armed had abducted Mst.
Mafia at gunpoint and thus they had committed an offence within the meanings of section 365-B, P.P.C.; the alleged abductee is a minor who could not contract marriage without the indulgence of a Wadi.
5. I have heard learned counsel for the parties and perused the record.
6. Mst. M0afia Bibi, the alleged abductee happens to be the star witness of this case who has been refuting the allegations contained in the F.I.R. Right from its inception. She appeared before learned Magistrate on 15-4-2010 to make statement under section 164, Cr.P.C, wherein she has rebutted the version of her father Manzoor Ahmad, the complainant and submitted that she being sui juris had contracted marriage with Shabbir Ahmad of her free will and accord, which had caused annoyance to her father. She further stated that she had not been abducted by anyone and the story contained in the F.I.R. Was false. The alleged abductee showed further valour to appear before the learned Addl: Sessions Judge, Pindi Bhattian where she submitted her sworn affidavit to the effect that she had not been abducted by anyone, the accused mentioned in the F.I.R. Were innocent and that she being 16/17 years of age had contracted marriage with Ghulam Shabbir on her own consent and that she had not been abducted by anyone. The complainant has mentioned the age of Mst. Mafia as 13/14 years, whereas, the alleged abductee stated her age as 16/17 years before the learned Addl: Sessions Judge, in her affidavit dated 25-6-2010.
7. The term "adult" in respect of a female, has been defined by the statute as the one who is either 16 years of age or has attained the age of puberty. The term puberty is synonymous with start of menstruation. Mst. Mafia while recording her statement under section 164, Cr.P.C. Mentioned her age as 18. It has been held in Abdul Ghaffar v. Ishtiaq Ahmad Khan 1997 PCr.LJ 1150 that a girl after reaching the puberty age can lawfully contract marriage even against the consent of her parents.
Earlier to this judgment similar findings was recorded in Mauj Ali v. Syed Safdar Hussain Shah (1970 SCM R 437). In another case decided by august Supreme Court of Pakistan Hafiz Abdul Waheed v.
Mrs. Asma Jehangir (PLD 2004 SC 219) it has been held that a sui juris Muslim girl can contract marriage of her own accord. The pronouncement of a couple as to their Nikah/marriage was found sufficient by the august Supreme Court of Pakistan for proof of a valid marriage in the above said glittering judgments. In para. No,6 of PLD 2004 SC 219 the previous judgments on the above points have been referred to, which I advantageously reproduce as under:-- "(6) In Muhammad Imtiaz and another v. The State PLD 1981 FSC 308, Arif Hussain and -Azra Parveen v. The State PLD 1982 FSC 42, Muhammad Ramzan v. The State PLD 1984 FSC 93 and Muhammad Yacipob and another v. The State and 3 others 1985 PCr.LJ 1064, the Federal Shariat Court has been consistently taking the view that a sui juris Muslim girl can contract marriage of her own accord and the consent of her Wali or other relations is not requisite to the validity of marriage. Earlier in Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCM R 437, this Court had held that a Muslim girl attaining puberty is competent to marry of her own free will and on this ground her custody was declined to her father and the order of the High Court permitting her to go and live with the husband was maintained. In PLD 1982 FSC 42 and PLD 1984 FSC 93 the Federal Shariat Court has even held that subject to other facts of a given case, an admission by a couple that they were married, would constitute sufficient proof of marriage."
' The august Supreme Court further observed in para No,29 of the judgment, two of the said declarations are reproduced as under:--
(i) For what has been stated above, it is hereby held/declared/ordered that as per judgments of the Federal Shariat Court, noted in para.6 of this judgment, consent of 'Wali' is not required and a sui juris Muslim female can enter into valid Nikah/marriage of her own free-will.
(ii) Statement of law contained in the judgments of the Federal Shariat Court, noted in para.6 of this judgment is binding on the High Court and Courts subordinate to the High Court.
7. As a pubert woman can contract marriage of her own accord without the indulgence of a 'Wali' hence, the same principle shall be applicable to the instant case. Mst. Mafia in the attending circumstance may be held as pubert who had solemnized marriage of her free will and accord which was not liked by her parents, hence, the instant case has been brought by her father against the petitioners and their co-accused. It is strange that 'Mst.Mafia, the alleged abductee is leading matrimonial life with Ghulam Shabbir; the real brother of the petitioners yet he has not been named as an accused, by the complainant so far. The attending circumstance of the case constitute need for further inquiry into the guilt of the petitioner.
8. For the foregoing reasons, I accept this application and admit the petitioners to post-arrest bail provided they furnish bail bonds in the sum of Rs,1,00,000 each with one surety each in the like amount to the satisfaction of learned trial Court.