1. ' A case under sections 5/15 of the Islaami Tazeerati Act read with sections 307/224, 225/332, 353/148 and 149/114, Azad Kashmir Penal Code is pending in the District Criminal Court, Kotli against the accused-petitioners and some other co-accused who were let off on bail by the trial Court but the b' ail to the petitioners was refused vide its order dated 28-11-1982.
2. ' The complainant in this case is Mr. Muhammad Anwar, Assistant Sub-Inspector of Police who according to him in a criminal case No, 107 dated 31-7.1982 of Kotli Police Station left for arrest of the accused namely Mst. Raqiyya Begum, her brothers, brother-in-law and a person named Kabir who is alleged to have entered into second marriage with her who was first married to Muhammad Yaqoob complainant in that case.. Simply a `Nikah' is stated to have been solemnized with Muhammad Yaqoob and departure of the bride from the house of her brothers was still to occur.
3. Before it could take place, some estrangement had been there between the parties as a result of which the woman had to file a suit of dissolution of marriage and the husband had to file a suit for restitution of conjugal rights thereby seeking an injunction as well against the brothers of the woman not to hinder the way of his wife to be sent to his house. The Assistant Sub-Inspector of Police, it was stated, reached the house of Muhammad Siddique accused at about 9 p.m. Where Mst. Raqiyya Begum was concealed within the house. On seeing the police and persons accompanying the police including Muhammad Yaqoob, the complainant, Muhammad Siddique and others escaped from the house of Muhammad Siddique in order to cover themselves in the maize crop. He broke open the door of the room of Muhammad Siddique accused where Mst.
4. Raqiyya Begum was concealing herself for her arrest as she refused to submit herself to the police and instead threatened to launch an attack on them with the axe, she was armed or she would commit suicide and thus after having arrested the woman he left the house alongwith his party and while they reached near about the house of one Allah Ditta, all the accused made an assault on them, out of whom Zafar Iqbal was wounded with a `Chhur? By Muhammad Nazir accused and some others were also injured at the bands of other accused-petitioners.
5. ' Muhammad Siddique and Muhammad Nazir were also injured as a fight took place between the parties and there had been stone throwing on each other. A report of the incident was sent to the Police Station by Muhammad Anwar complainant through his Constable Muhammad Yunus by name. It was delivered to the S. H.
0. At 9-30 p.m., the receipt of which was mentioned in the `Roznamcha' giving a brief description of the occurrence therein vide `Roznamcha' of the night dated 31-7-1982, a copy of which is also placed on the record of this Court thereby pointing indication of perusal of the `Roznamcha' concerned in original.
6. ' The learned counsel on both the sides were heard.
7. ' The contention of the counsel for the accused-petitioners is that as a matter of fact there was no case of bigamy and its abetment registered at the Police Station at the time the occurrence in band is alleged against the accused. On 31.7-1982 a suit for restitution of conjugal rights and injunction thereto was instituted by Muhammad Yaqoob complainant against his wife Mst. Raqiyya Begum, her brothers, brother-in-law, mother, father and wife of her brother-in-law in the Court of Sub-Judge Kotli, which may be taken as a reaction against the suit of dissolution, of marriage filed by the wife against her husband on the same day vide Civil Suit No, 118 of 1982 instituted by the wife and Suit No, 121 filed by the husband. There was no indication in the suit of the man concerning the complaint to the effect that wife had entered into a second marriage or was enticed away by Kabir, the accused on 25-7-1982. That criminal case was allegedly registered at 5-30 p.m. On 31-7- 1982 at the Police Station in which the offences of bigamy and its abetment are reported to have taken place on 25-7-1982.
8. ' An affidavit was filed by the woman alongwith the suit of dissolution of marriage apprehending therein her forcible abduction by Muhammad Yaqoob, the complainant. It is argued that if there had been any offence committed by her prior to the institution of the suit by the complainant as alleged there ought to have been some mention or indication at least in the suit for restitution of conjugal rights. It is urged that there was no arrest to be made by the police in the so-called criminal case and it was all a case of forcible abduction by the complainant and his party with the aid of police.
9. ' The brothers and the woman it is argued in order to protect the person of the woman from being abducted forcibly had to have a fight with the complainant party in retaliation. How Zafar Iqbal received injuries on his person is not known to them. They do not admit themselves to have been responsible for the alleged murder. Accordingly `Roznamcha' concerned was sent for, the perusal of which shows that entry with regard to case No, 107 dated 31-7-1982 was made at S. No, 18 and the case in hand at S. No,
22. No substantial entry in relation to the cases in question is shown between the two agitated. 'Roznamcha' is not on the prescribed printed form. It is on plain paper.
10. ' The investigation of Case No, 107 appears to have been mechanically made within 3 (1/2) hours.
11. Mullan Akhtar Hussain who is allegedly a `Nikah Khawan' of second marriage belongs to village Kakanni a far-off village from Kotli whose attendance could not be possibly procured within the time it was shown by one of the investigating officers who is the complainant himself in this case.
12. This officer had to travel through a number of villages as per record prepared but could it be possible for him to travel through villages namely. Maneel, Kurti, Dhamole and then to the village Ishkiali where the incident took place within a period of 2 (1/2) hours and within this very period the availability of `Nikah Khawan' was also made on the night of 31-7-1982 and some other witnesses as well before the occurrence in hand. Was it possible for the police to collect all the relevant witnesses after the registration of the case in the evening of 31-7-1982 within one hour in the first instant and then within 2 (1/2) hours during which steps for arrest were also taken by the investigation officer himself ? Some of the evidence was recorded by the S. H.
0. In that case and some by Muhammad Anwar Assistant Sub-Inspector of Police himself. Is it that within 2 (1/2) hours he was able to procure the evidence of `Nikah Khawan' from Kakanni a far-off village from Kotli and taking some other evidence too, and all along was going from house to house in the villages namely Maneel, Kurti, Dhamole and finally in Iskhiali at the very residence of the woman and her brothers where she was living with them. Thus there is no question of her concealment, it is urged, in her dwelling-house.
13. ' After the performance of `Nikah' ceremony with Muhammad Yaqoob complainant, she never parted from the house of her brothers for the house of her husband. `Roznamcha' dated 31-7-1982 which speaks of the incident in band, shows that the venue of the occurrence was not the place which was shown by the police during the investigation of the instant case. It was at the very house of Muhammad Nazir and Muhammad Siddique accused where she and her brothers were within the house when the incident took place. It was given in the `Roznamcha' that as soon as the bolt of door of the house of Muhammad Siddique was tried to open, an assault was made by Muhammad Siddique etc. From inside the very house. In the circumstances, the question arises whether there was no case registered under sections 494/109, P. P. C. Read with sections 10, 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance against the accused at the relevant time and it was just to abduct Mst. Raqiyya Begum by force as contended, on the night of 31-7-1982 when the incident took place. It was after the failure of the complainant party in their designs, that a case of bigamy was concocted just to create justification for arrest of the accused and so the accused party had a right of private defence of body. These are the questions requiring further inquiry in order to reach a correct finding.
14. ' The case 'Muhammad Farid v. State' cited by the counsel of the complainant has no bearing on the circumstances of the present case so as to reject this application. That being so, it will be meanwhile, proper in the interest of justice that the accused-petitioners should also be allowed bail who shall furnish bail in the amount of Rs, 50,000 with two sureties each in the like amount to the satisfaction of any Magistrate of Kotli.
15. ' The application stands accepted.
16. ' Roznamcha shall be returned to the police.
17. ' Before I part from the case I may like to say that nothing in this order shall be construed as expression of opinion this way or that way and the trial Court is at liberty to approach the case with open mind.