1. ' Zulfiqar Ali Shah, petitioner alongwith Munawar Hussain Shah and Abdullah Shah are charged for offence under section 366/34, P.P.C. Read with sections 11 and 16 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979.
2. ' The case as set out in FIR is that the complainant and his sons live in the same house. He has one daughter Ghulam Fazalan who is aged 16/17 years. About six months back her hand was demanded by Imam Ali Shah for the petitioner but he refused as he has to give his daughter to his nephew Munawar Shah so he was annoyed. About 10/15 days back he learnt that the petitioner was visiting frequently his house and he had developed illicit relations with Mst. Ghulam Fazalan. So he was asked not to visit his house and as such the petitioner accompanied by his brother Munawar Hussain Shah and Abdullah Shah who are sons of his cousin Imam All Shah told him that he would see him. Last night on 4-1-1989 at about 8 p.m. When they were watching some drama on T.V.
3. Alongwith his family members including his niece Mst. Ghulam Fazalan, the petitioner, Munawar Hussain Shah armed with gun and Abdullah Shah armed with hatchet entered his house. All the three threatened his daughter and aimed at her so she went in the other room but she was dragged from her arm and taken out. They threatened if anybody tried to intervene they would beat them, so they did not follow them and because of fear she had not raised cries. All the three had taken his daughter. Munawar Hussain Shah guarded at the door of his house and told them that they would not raise cries. After some time Munawar Hussain Shah also left them.
4. ' Abdullah Shah and Munawar Shah were enlarged on bail. Mst. Ghulam Fazalan was recovered on 8-1-1989 and her statement under section 164, Cr.P.C. Was recorded on 9-1-1989. The petitioner was arrested on 11-1-1989. He moved petition for bail which was rejected by order dated 9-2-1989.
5. ' Mr. Qurban Ali Chohan, the learned counsel has raised the following contentions:-- "(1) The petitioner and Mst. Ghulam Fazalan were married on 28-12-1988 and Nikah was performed at Moro in the presence of respectable persons of area and it was duly registered as required by law.
(2) The petitioner has already filed a suit for restitution of conjugal rights.
(3) There is a delay in lodging FIR which has not been satisfactorily explained."
6. ' On the other hand Mr. Muhammad Ashraf Leghari learned counsel for the respondent has opposed the bail. The learned counsel has submitted that delay has been satisfactorily explained.
7. ' I have considered the contentions of the learned counsel and have gone through the documents produced alongwith the petitioner for bail. The Nikahnama shows that Mst.Ghulam Fazalan was married with the petitioner on 28-12-1988, that is, prior to lodging of the FIR. In Hazarat Gul v. Ajmal Khan and two others 1986 SCM R 1529, the facts of the case are that the learned Single Judge granted bail on the ground that the accused were married without any compulsion from any outside quarter, and unless, on evidence Nikah was found to be otherwise their case was clearly that of further enquiry. The petitioner sought cancellation of bail of the two respondents. The criminal petition for leave to appeal was dismissed by the Hon'ble Supreme Court. In Sanullah v.
8. The State 1986 P Cr. L J 669, it was held that the genuineness or otherwise of the Nikahnama between the accused and abductee is yet to be gone into. It was further held that it was a case of further enquiry.
9. ' In Muhammad Anwar v. The State 1987 P Cr. L J 1547, it was held that the accused in a case under section 16 of Zina (Hudood Ordinance) is entitled to bail on the ground that the evidence under section 16 being punishable for a term extending to seven years of imprisonment and his case does not fall within the prohibitory clause of section 497, Cr.P.C.
10. ' In Mustafa v. The State 1988 P Cr. L J 779 it has been held that two days delay in lodging the FIR was not reasonably explained and prosecutrix medically examined yet another two days later, prima facie, presented an unsatisfactorily features of prosecution. In these circumstances bail was allowed.
11. ' In Muhammad Salim v. The State 1989 P Cr. L J 457 in this case Nikahnama shows that she was married with the petitioner and the FIR delayed by 13 days, in such circumstances the bail was allowed.
12. ' The above decisions support the contentions of the learned counsel for the petitioner and this is a fit case for further enquiry.
13. In the instant case the Nikahnama shows that the Nikah was performed on 28-12-1988, FIR was lodged on 5-1-1989. According to the FIR incident took place on 4-1-1989 at 8 p.m. The delay has not been satisfactorily explained. She was recovered on 8-1-1989. Her statement under section 164 was recorded on 9-1-1989. The petitioner has already filed suit for restitution of conjugal rights against the abductee in the Court of Family Judge, Dadu.
14. ' In view of the above circumstances, I direct that the petitioner shall be released on bail on furnishing surety in the sum of Rs,30,000 (Rupees Thirty Thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.