An F. I. R. Was lodged by one Mokha on 16th September, 1982 in respect of commission of offence under section 363, P.P.C. By petitioner Imam and others for abduction, a month ago, of his minor daughter 14 years from his house when petitioner and his co-accused had come to his house as guests.
2. The facts in chronological order are that Mst. Bibi was with Imam petitioner some times on or about 16th August, 1982 and then as shown by copy of Nikahnama placed on the record of this case there was a Nikah between her and Imam petitioner on 20th August, 1982. On 12th October, 1982 after her recovery she made a statement under section 161, Cr. P. C. In which she stated that she had voluntarily come out of the house of her father and had married toe petitioner. On 16th October, 1982 her medical examination was performed and according to medico legal report based on X-ray report, she was about 15 years of age.
It is also on record that on 17th October, 1982 she executed an affidavit deposing that she had not been abducted by any body and her Nikah with Imam petitioner was performed with her own consent and she had not taken away any thing from the house of her father. It appears that there- -after she was made an accused person in the case and was charged with offence under section 10 (l) of the Ordinance (VII of 1979) and was arrested on 17th October, 1982. She was granted bail on 6th November, 1982 and on the same day interim bail before arrest granted-to Imam previously was cancelled and he was arrested and sent to jail. Mst. Bibi, how--ever, in spite of the absence of Imam made a statement on 9th December, 1982 under section 164, Cr. P. C. Before a Magistrate again exonerating the petitioner and stating that her father had given her Rishra to peti--tioner, Imam, but resiled from that and had wanted to marry her to some one else against her wishes and that, therefore, she had voluntari--ly come out of the house of her father and had married the petitioner of her own free will. She further stated that she had come alongwith her father-in-law Sharaf Din (father of petitioner) to make the said statement and would return to his house.
3. The learned Sessions Judge by his order dated 9th January, 1983 rejected the application of the petitioner for bail after arrest on the ground that Mst. Bibi was a minor and her consent either to Niksh or illicit intercourse with the petitioner was of no consequence and did not make her the legally wedded wife of the petitioner and, therefore, she and petitioner were having an adulterous life.
4. Learned counsel for the petitioner has sought bail on the ground that Mst. Bibi had attained puberty and had lawfully entered into marriage with the petitioner.
5. Learned counsel for the State has opposed the grant of bail on the ground of minority.
6. Learned counsel for the petitioner had placed on record photo copy of deed of agreement executed on a regular stamp paper by Mokha father of Mst. Bibi with Sharaf Din father of petitioner Imam on 12th September, 1959, whereby in return for the sister of the petitioner Imam whose hand Mokha obtained for Sikandar, his brother-in-law, he (Mokha) had promised to give hand of Mst. Bibi his daughter aged 21 years (at that time) to the petitioner Imam as and when she came of age, Prima facie, therefore, on the showing of complainant himself, can the date of institution of the F.I.R.
On 16th September, 1982 Mst. Bibi was of 151 years of age and on the date of Nikah on 20th August, 1982 she was of 15 years and about 5 months of age. According to the medico legal report of Mst.
Bibi based on X-ray she was of the age of 15 years on 16th October, 1982. However, this was only an opinion and gave only an approximate age and is not sufficient to rebut the admission of Mokha made in the said agreement to which he had subscribed by affixing his thumb impression.
According to explanation to para. 251 of Muhammadan Law by Mulla 1977 Edition, puberty is presumed in the absence of evi--dence on the completion of the age of 15 years. Therefore, on tentative assessm ent of material placed before me, the presumption to be drawn is that she had attained the age of puberty on 20th August. 1962 and was entitled to enter into Nikah with any one she liked on that day. Her statement that her father had already given her rishta to petitioner and she had voluntarily gone to the house of the petitioner and had entered into Nikah voluntarily with him is supported by the said deed, which shows that Mokha had already availed of the benefit of getting the hand of Imam's sister for Sikandar, his brother in-law and had in return for that, undertaken to give the hand of Mst. Bibi to petitioner Imam on her becoming young. Furthermore when statement of List. Bibi under section 161, Cr. P. C. Was recorded, she wholly exonerated the petitioner and stated that she had voluntarily come to the house of the petitioner and bad entered into Nikah with him. She had not been made an accused person by that time. The fact that she was later made an accused shows that she struck to her statement. There is available, therefore, an area of doubt in this case qua the implication of petitioner as an accused person for offences under section 363 and section 10 of Ordinance VII oft 1979. The said deed dated 12th September, 1969 and her said statement dated 12th October, 1982 under section 161, Cr. P. C. Her affidavit dated 17th October, 1982 and the said Nikahnama dated 20tH August, 1982 make petitioner's case as one of further enquiry. He is therefore, en--titled to grant of bail under section 497 (2), Cr. P. C.
7. In view of the above, I grant petitioner bail in the sum of Rs. 30,000 (Rupees thirty thousand) with two sureties each in the like amount to the satisfaction of the A. C., Okara. 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.