The petitioner seeks bail in case F. I. R. No. 93/81 dated the 12th April, 1981, Police Station Misri Shah, Lahore.
2. The First Information Report was lodged by Mst. Salima Bibi, the mother, of the abductee Mst.
Shakila. Begum. She has inter alia stated that her elder daughter Mst. Jamila Bibi was married to the petitioner. The petitioner's mother wanted the hand of Mst. Shakila Begum, abductee for her son Muhammad Rafiq to which she was not inclined. It is stated that on the day of occurrence Mst.
Khurshid, mother of the petitioner came to her house and took away Mst. Shakila on the pretext that her (Shakila's) sister Mst. Jamila wanted to see her and promised that she will be returning soon, but the girl did not turn up. The complainant went to the house of Mst. Khurshid and made an enquiry but Mst. Khurshid expressed ignorance. The complainant has further stated that she learnt on enquiry that her daughter had been abducted by Mst. Zainab, the petitioner and Muhammad Rafiq with the connivance of Mst. Khurshid so that she be married to Muhammad Rafiq, against her will. Mst. Shakila, the abductee was brought by one Anwar from Karachi and restored to the complainant. After her return from Karachi, Mst. Shakila made a statement under section 164 of the Code of Criminal Procedure wherein she levelled allegations of abduction against the petitioner, Muhammad Rafiq, Mst. Khurshid and Mst. Zainab by reduction. She has stated that she was taken to Karachi where Muhammad Rafiq committed rape upon her. She has further stated that she was made to sign and thumb mark some documents there. She has also stated that after 4/5 days she was brought back to Lahore by the petitioner, Mst. Zainab and one Anwar and that on the Lahore Railway Station the petitioner and Mst. Zainab told her to go to the house of her mother and they went away.
3. Learned counsel for the complainant has stated that Mst. Shakila, the abductee was about 13 years of age at the time of occurrence. He has argued that clear case of abduction is established against the petitioner and that if any favourable statements have been got recorded by the accused, they are of no value in view of the minority of the abductee. He has vehemently argued that Mst. Salima would not falsely involve her own son-in-law in the case.
4. It is contended on behalf of the petitioner that no allegation of rape has been levelled against him, that Mst. Shakila is a major girl, reliance in this regard has been placed on a certificate issued by Dr. Qaisar Rasul Khan, Police Surgeon, Karachi, wherein she has been opined to be 17 years old.
He has also placed on record an affidavit attested by a Magistrate, of Mst. Shakila wherein she has stated that she was a major girl and was married to Muhammad Rafiq of her own free will. Learned counsel for the petitioner has also placed on file a copy of the Nikahnama. According to this Nikahnama, the abductee has been married to Muhammad Rafiq a co-accused of the petitioner.
5. Admittedly the parties are related. Not only Mst. Salima is mother of Mst. Jamila wife of the petitioner but she is also a paternal niece of the mother of the petitioner. The documents produced by the learned counsel for the petitioner cannot be adjudicated upon at this stage. They will be scrutinzed and their value will be assessed at the trial stage. However, the fact is not denied by both the parties, rather the same is expressly stated that mother of the petitioner and Muhammad Rafiq co-accused was desiring the hand of Mst. Shakila for Muhammad Rafiq. In view of the existing relationship such a thing ordinarily would happen with a family like the one living in this country.
There is no allegation that the petitioner ever pressed the desire for the hand of Mst. Shakila for his brother. The Nikah was performed at Karachi. The name of the petitioner does not figure in it in any capacity. Had it been in the presence of the petitioner or had it been performed with the support and connivance of the petitioner, he would certainly have been one of the witnesses or Vakil of the bridegroom, being elder brother, particularly when the marriage ceremony was being performed away from his house in Karachi. In view of this a doubt is cast in the statement of Mst. Shakila, whether the petitioner was also in Karachi when she was in Karachi whether she might have been taken by seduction or might have gone there of her own free will, about which at this stage no opinion should be expressed.
In view of the fact that there is no allegation against Muhammad Arshad petitioner for pressing for marriage of Mst. Shakila with his brother, that there is no allegation of rape against him, that his presence at Karachi is not supported by any documents regarding which the abductee admitted that she was forced to sign to thumb mark, and that in view of the fact that the petitioner is already in jail for the last about 6JI months, 1 feel a case for bail is made out in his case. He shall be released on bail provided he furnishes bail bonds in the s um of Rs. 20,000 with one surety in the like amount to the satisfaction of the trial Court.