1. ' BASHARAT AHMAD SHAIKH, J.---Appellants Mehtab Hussain and Mst. Munawar Shaheen claim to be husband and wife. Mst. Munawar Shaheen filed an application against her father and others in the Court of Sub-Divisional Magistrate on 27th of December, 1994 and on the same day made a statement in that Court in which she deposed that she wanted to marry Mehtab Hussain of her independent will which was being opposed by her father and other elders. According to their case their marriage was solemnised on 24th of January, 1995. Nikahnama has been produced in the Courts below as well as in the Shariat Court. Five days later, on 29th of January, 1995 a report in writing was lodged by Shahid Pervez which resulted in registration of a case under section 10/16 of the Zina (Enforcement of Hudood) Act and section 14 of the Offences Against Property (Enforcement of Hudood) Act read with section 109 of the Penal Code. It was stated in the report that Nikah of Mst. Munawar Shaheen was performed with Shahid Pervez two years ago but `Rukhsti' had not taken place. Nikah was stated to have been performed by Maulvi Muhammad Rafique. It was alleged that on 24th of January at night time Mst. Munawar Shaheen was abducted by Mehtab Hussain with the abetment of eight other accused persons for illicit intercourse and for contracting second marriage. Amongst the eight accused mentioned above were father, uncle and mother of Mehtab Hussain as well as sister of Muhammad Hanif, father of Mehtab Hussain. Mst.
2. Munawar Shaheen was also named as one of the accused persons.
3. ' The appellants were arrested on 13th of February, 1995. They moved an application for bail which was rejected by the Tehsil Criminal Court. The trial Court expressed the tentative view that out of the two Nikahnamas the one showing Nikah with Shahid Pervez appeared to be "previous and superior". The District Criminal Court, on being moved by the appellants, accepted the bail application on 26th of February. For detailed reasons incorporated in the order of the said Court it was held that it appeared that Mst. Munawar Shaheen's Nikah with appellant was genuin-, while the alleged Nikah with Shahid Pervez was only an attempt to frame a case.
4. ' The order granting bail to the appellants was challenged before the Shariat Court by Shahid Pervez. A learned Judge of the Shariat Court took the view that in presence of the version of the father and mother of Mst. Munawar Shaheen it could not be said that Nikah with Shahid Pervez was not performed. The learned Judge sent for the girl who, on being questioned, deposed before the Court that she was legally-wedded wife of Mehtab Hussain. The learned Judge held that, prima facie, a case existed against Mehtab Hussain and therefore he did not deserve concession of bail.
5. About the girl the Shariat Court expressed the view that she was entitled to the concession a bail on the ground of being a female. However, notice was taken of the fact that District Criminal Court had allowed Mst. Munawar Shaheen to be released on bail bonds of Mehtab Hussain. The learned Judge expressed the view that allowing _Mst. Munawar Shaheen to live with Mehtab Hussain would tantamount to permission for illicit intercourse if ultimately Nikah with Shahid Pervez was found genuine. In this connection the learned Judge further observed as follows:-- "... ... It has repeatedly been held by our own Supreme Court that an abductee cannot be allowed to live with the accused on bail, but she could only be released on the bail of some Mehram persons and I am bound by the judgment of our own Supreme Court."
6. ' The concession of bail was allowed to her provided her mother, father, maternal-uncle or any other person within the prohibited degree stood as a surety. While Mehtab Hussain has, through this appeal, challenged the cancellation of his bail, Mst. Munawar Shaheen calls in question the condition imposed in respect of her bail bond.
7. ' We have heard the learned counsel for the parties. The learned Advocate-General, Ch. Muhammad Yusuf, also stepped in to support the order under appeal.
8. ' Ch. Muhammad Azam Khan relied on the statement made by Mst. Munawar Shaheen before the Sub-Divisional Magistrate on 27th of December, 1994 in which she stated that she was unmarried and that she wanted to contract marriage with Mehtab Hussain, an affidavit attested by the Sub- Divisional Magistrate on the same day in which the same deposition is repeated and also the fact that Nikahnama evidencing the girl's marriage with Mehtab Hussain is duly registered. He also vehemently relied on three certificates issued by the District Mufti and Tehsil Mufti that the marriage with Mehtab Hussain was duly registered while there was no other Nikah of the girl registered. One of the certificates also contains the recital that Maulvi Muhammad Rafique, who is claimed to have performed the Nikah of Mst. Munawar Shaheen with Shahid Pervez, is not a registered `Nikah Khawan'. Ch. Muhammad Azam Khan also submitted that even from a naked eye it can be seen that on Nikahnama with Mehtab Hussain the signatures of Mst. Munawar Shaheen are similar to those which are inscribed on the Vakalatnamas filed in the Courts while those on the alleged Nikahnama with Shahid Pervez are totally dissimilar. Ch. Muhammad Azam Khan strongly relied on the fact that there was a delay of clear five days which spoke loudly for the fact that this time was taken in forging a fake Nikahnama. He contended that even the belated report did not contain necessary details of the alleged incident. The learned counsel relied on Mst. Manzoor Bibi v.
9. The State 1988 PCr.LJ 564, a judgment from Lahore High Court, to contend that an accused party has a right to furnish surety of his own choice. The facts of the case were that on being requested that a woman, about whom there was a similar dispute, may be released on bail bond furnished by her father alone, it was observed that when the father was siding with the complainant it was not proper to impose this condition because the petitioner in the case may not wish to be released on the surety bond furnished by her father.
10. ' Mr. Abdul Majeed Mallick, the learned counsel for Shahid Pervez, submitted that the admission on the part of Mehtab "Hussain and Mst. Munawar Shaheen that they were married in itself was a proof that alleged offences were being committed by them and therefore no other proof was needed at the bail stage. He submitted that in the application moved by Mst. Munawar Shaheen before the Sub-Divisional Magistrate it was alleged that her father, Amanullah, had given her beating in order to force her to marry with the man of parent's choice but the fact of the matter was that on that date father of Mst. Munawar Shaheen was in U.K. And came to Azad Kashmir much later. The learned counsel vehemently supported the order of the Shariat Court in respect of condition imposed in respect of the bail bond of Mst. Munawar Shaheen. He submitted that not only there will be repetition of the offence of illicit intercourse if this condition is removed but there is also a possibility that she might give birth to a child who ultimately may be found illegitimate. However, the learned counsel candidly accepted the position that it is not necessary that Mst. Munawar Shaheen must be forced to stay with her father or any person within the prohibited degree and submitted that she may be released on bail bond of any respectable and independent person. He relied on Mst. Kulsoom v. Rehmat Ali 1983 PCr.LJ 1411 and Khan Muhammad v. The State 1984 PCr.LJ 1496. In Mst. Kulsoom's case it was held by the Lahore High Court that a respectable person of the locality held in high esteem by the people of that area may also stand surety, if so willing. In Khan Muhammad's case Muhammad Khan and Mst. Gul Parveen were accused persons who claimed that they were legally-wedded. The learned Judge of the High Court formed the view that grant of bail would tantamount to illicit love affair and fornication, and disallowed the bail to both of them.
11. ' In our opinion the learned Judge in the Shariat Court fell in error in refusing bail to Mehtab Hussain.
12. The learned Judge has made observations that in presence of version of father and mother of Mst.
13. Munawar Shaheen it could not be said that Nikah with Shahid Pervez was not performed. The learned Judge refused to give any credence to the statement given by Mst. Munawar Shaheen before the Sub-Divisional Magistrate on the ground that Mst. Munawar Shaheen came from village Nain-Sukh situated in Kotli but tiled a complaint in the Court of Sub-Divisional Magistrate Selma who had no territorial jurisdiction to entertain a complaint pertaining to Kotli Tehsil. The question is to see whether the statement was voluntarily made or not and the question of jurisdiction was not relevant. The learned Judge has also made the observation that Maulvi Muhammad Rafique, about whom it was certified that he was not a registered `Nikah Khawan' had performed other Nikahs also. The learned Judge overlooked the facts that documentary evidence was produced which has been referred to above, to show prima facie the validity of the Nikah in favour of Mehtab Hussain. It is admittedly registered with the concerned authorities. There is also prima facie proof that the other Nikahnama is not registered anywhere. Then there is delay of five days. It has yet to be seen what prevented Shahid Pervez from immediately filing a report with the Police in such a delicate and serious matter. The explanation furnished in the F.I.R. Is that delay was caused due to the fact that Shahid Pervez contacted the father of the girl in U.K. This explanation has yet to be tested at the trial but it has given rise to an argument that the time was taken to concoct a Nikahnama. In our view all these factors combined together make it a case of further inquiry. The bail, therefore, becomes a right in terms of section 497 of the Code of Criminal Procedure for the appellants.
14. ' We now turn to the condition imposed on Mst. Munawar Shaheen. As already mentioned the stand taken on behalf of Shahid Pervez is not that the condition must be retained in the form in which it was imposed by the Shariat Court. According to Mr. Abdul Majeed Mallick the condition can be modified to make it possible that any respectable and independent citizen may stand surety for Mst. Munawar Shaheen.
15. We have given our earnest consideration to this aspect of the case. Mst. Munawar Shaheen is not ready to live with any of her family members and she has chosen to go to the judicial lock-up where she is lodged since about a month. On the other hand we are releasing Mehtab Hussain on bail. We cannot help noting the legal position that registered Nikahnama carries with it a presumption of truth. In the peculiar circumstances of the present case we are of the view that it will be sufficient to order that Mst. Munawar Shaheen shall not be released on the bond executed by Mehtab Hussain.
16. We accordingly set aside the order passed by the Shariat Court in respect of Mehtab Hussain and order his release on bail. The bonds furnished in consequence of the order passed by the District Criminal Court on 26th of February, 1995 are restored. It is further ordered that Mst. Munawar Shaheen shall be released on bail if any person other than Mehtab Hussain executes a bail bond in the sum of Rs,20,000 with personal bond to the satisfaction of the Deputy Registrar of this Court or any Magistrate.