JUDGMENT ATTAULLAH KHAN, J.---Nasir Gul and Muhammad Rafique, accused/ petitioners, have filed this application for their release on bail in case F.I.R. No.395 dated 16-11-2006 under sections 5/10(2)/ 19(2) of the Offence of Zina, Enforcement of Hudood Ordinance 1979 and sections 376/365- B/454, P.P.C. Of Police Station Tajori, Tehsil and District Lakki Marwat.
2. The allegations against the accused/petitioners as -per F.I.R. Are that they had abducted Mst.
Sad Bibi for Zina in active connivance of their co-accused Muhammad Shafique.
3. Learned counsel for the accused/petitioners argued that as per statement of Mst.Sad Bibi, she being of the age of twenty years, had left her house with accused/petitioner Muhammad Rafique, whereafter she married him. He pointed out that in the affidavit dated 15-11-2010, the same statement' has been given. He further argued that the complainant is not the husband of the lady and no Nikah has been proved on his part with Mst. Sad Bibi. He next urged that Mst. Sad Bibi has entered in Nikah with accused/petitioner Muhammad Rafique and she has two children' He submitted that, the petitioner Nasir Gul at the time of occurrence was 13/14 years of age and being minor, he had committed no offence in the eyes of law. Moreover, the accused/ petitioners are brothers and it is not possible for them to abduct a lady for commission of Zina.
4. On the other hand, learned counsel for the complainant argued that Mst. Sad Bibi is the legally wedded were of the complainant and the subsequent Nikah, if any, has no legal value and due to the second Nikah, the accused/petitioner Muhammad Rafique is guilty of commission of continuous Zina.
5 I have carefully gond through the record of the case and considered the submissions of the learned counsel for the parties.
6. The first fact to be pointed out is the time of lodging the F.I.R. The occurrence has allegedly taken place at 2100 hours while its report was lodged at 0920 hours and this delay has not been properly explained by the complainant. The reason given for this delay is non-availability of transport which is not convincing in view of the distance of place of occurrence and the Police Station which is about 14/15 kilometers. Furthermore, no Nikah Nama has been produced by the complainant in support of his marriage with Mst. Sad Bibi. The marriage, if any, with the complainant also becomes doubtful keeping in view the age of the lady. According to the police record and statement of Mst.
Sad Bibi before the police, she was engaged with accused/ petitioner Muhammad Rafique in her childhood but when she got puberty, her parents wanted to mary her with the complainant and, therefore, she left the house of her parents and went to the house of accused/ petitioner Muhammad Rafique and thereafter married him. So this statement means that the earlier affair between the complainant and Mst. Sad Bibi was mere engagement and not Nikah. This is supported by the fact that no Nikah Nama has been produced by the complainant in support of his marriage with Mst. Sad Bibi. The affidavits available on file also support the plea that Muhammad Rafique petitioner has entered into Nikah with the lady and has got two children. In absence of Nikahnama, a lady who is major has the right to enter into Nikah of her on choice.
7. In a similar case where there was a dispute regarding two Nikahs with two different persons, the honourable Lahore High Court has held that when there are two claimants of a woman to be their were; then it becomes a case of further inquiry. This case is reported in 2005 PCr.LJ 340 wherein it has been held as under:-- "In the case of co-accused Rehana alias Shama, this Court has observed that it is a case of two Nikahnamas and the question that which of these is correct seriously needs consideration. The benefit of such observation is equally available to him and from the angle his case is covered under subsection (2) of section 497, Cr.P.C. Calling for further inquiry into his guilt".
8. Here in this case also, two Nikahs are disputed due to which the case of the accused/petitioners becomes that of further inquiry and arguable for the purposes of bail.
9. The only material against the accused/petitioners is their alleged abscondence which is only corroborative in nature and could not be made hurdle in their way to avail bail, when otherwise their case falls within the ambit of further inquiry. In this connection, I may rely on 2007 PCr.LJ 1715.
10. In view of the above facts and circumstances of the case, this application is allowed and the accused/petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs One lac with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.