1. Exemption is allowed but subject to all just exceptions.
2. The applicants who are facing trial under section 16, Zina Ordinance under F.I.R. No,134 of 1997 of Police Station North Nazimabad, Karachi have filed the present bail application.
1. ' The facts as disclosed in the F.I.R. Are that Noorul Hag son of Fatalur-Rehman, the complainant, resident of Hut No,150 .Katchi Abadi, Mosa Goth, North Nazimabad, Karachi stated that he resides at the above address and is employed in a Garment Factory. On 5-4-1996 he was married with Mst.
2. Shahida alias Shilfy Begum daughter of Noorul Islam. Alam son of Muhammad Jalal used to visit his house and established illicit relations with his wife. On 22-2-1997 at about 8-00 p.m. He returned to his house and found that his wife was not present in the house. He enquired from maternal- grandmother Mst. Asiya Begum who disclosed that Shilfy. Begum had gone outside at 5-00 p.m.
3. And since then she had not returned back. He and Muhammad Hanif kept on searching Mst. Shilfy Begum and reached at the house of Alam situated at Azizabad, Bhigoria Goth, where Mst. Shilfy Begum was present but Alam refused to hand over her to him. He further stated that his complaint was against Alam son of Jalal who had enticed away his wife with intention to commit Zina.
4. ' I have heard the learned counsel. The applicants' counsel has filed certain documents alongwith the bail application. According to Annexure "B" to this application, the said Mst. Shahida alias Shilfy Begum on 22-2-1997 at about 5-00 p.m. Submitted an application to the S.H.O. Police Station Azizabad, Karachi wherein she stated that she had come to her uncle, namely, Alam of her own free-will as her maternal-grandmother had, by fraudulent means, given her hand to one old man and had performed her Nikah with him against her wishes, therefore, she had left the house and had come to the house of Alam, uncle. According to Annexure "C" to the bail application, the said Mst. Shahida alias Shilfy Begum had filed an application before the A.C. And S.D.M. Liaquatabad, Karachi showing therein Asia and Nooro as opponents. This application was presented on 24-2- 1997 and in this application the said Mst. Shahida alias Shilfy Begum stated that she was a girl aged about 13 years and her real father had expired and after the expiry of her father, her mother had remarried and, therefore, she had been residing with her mother-in-law Asia for the last several years. She further stated that about 8 months back her mother-in-law (it should have been maternal-grandmother) performed her Nikah with a man, namely, Nooro aged about 45 years fraudulently without her consent but Rukhsati has not so far been made. That her maternal- grandmother had also received a sum of Rs,10,000 against her Nikah from the said Nooro. She further stated in this application that she wanted to live with a person namely, Muhammad Alam son of Muhammad Jalal resident of B-522, Bhangoria Town Azizabad Federal B Area Karachi, who was a married man and she considers him as her father and he also used to treat her as his daughter. On this application, the S.D.M. Directed the S.H.O. Sharifabad to enquire into the matter and submit a detailed report. The S.H.O. Concerned accordingly recorded the statement of said Mst. Shahida alias Shilfy Begum and Alam Khan son of Muhammad Jalal. In her statement, recorded before the S.H.O., the said Mst. Shahida stated the same facts as mentioned by her in her first application before the S.H.O. The said Alam Khan son of Muhammad Jalal in his statement supported the statement of Mst. Shahida alias Shilfy Begum. There is yet another statement of Mst.
5. Shahida alias Shilfy Begum recorded by the S.D.M. On oath on 3rd March, 1997. That the said Mst.
6. Shahida in her statement under section 164, Cr.P.C. Took a somersault and changed her previous statements and implicated Muhammad Alam, Saleem, Mst. Hanifa, Shahid and Abdul Latif and stated that Saleem, Shahid and Abdul Latif had also committed Zina Biljabar with her including accused Alam. Learned A.A.-G. Relying on the statement recorded under section 164, Cr.P.C. Argued that Mst. Shahida alias Shilfy Begum has clearly implicated the accused as such he opposed the bail application.
7. ' What I find in the present case is that Mst. Shahida alias Shilfy Begum had made more than one statements voluntarily and stated that she had left the house of her maternal-grandmother and Nooro and had gone to Alam's house. In this regard reliance is placed on Khalid v. The State 1995 PCr.LJ 968 in which it has been observed as under:-- "There is an unexplained delay of four months in lodging of F.I.R. Co-accused of the petitioner has been declared innocent by the Investigating Agency. On the plain reading of F.I.R. It appears that Mst. Zafran went away with her free-will and later on after recovery deposed against the petitioner in her statement under section 161, Cr.P.C. Which is quite usual in our society. Woman in our society is very weak creature, cannot even sustain the pressure of both respective ends of the play and always makes statement in favour of a person in whose possession she is. She even cannot enjoy life or respire independently. In such circumstances, the statement of abductee under section 164, Cr.P.C. Loses its weight or importance. This makes the case doubtful and that of further inquiry."
8. ' The next case on the point is Abdul Samad and others v. The State 1988 PCr.LJ 555. In para. 7 of this reported case, it has been observed:-- "Admittedly here is delay of two days in lodging the F.I.R. And the abductee in her two statements, dated 9-6-1987 and 11-6-1987 made before a Magistrate and the Assistant Commissioner respectively, absolved the petitioner of the allegation of abduction and rape. In these statements she also denied to have married Muhammad Hussain on 13-5-1987 and instead admitted to have contracted marriage with Abdul Samad, petitioner, on 4-6-1987. However, subsequently in her statement dated 9-7-1987 made before the D.S.P., she supported the prosecution.'
9. ' It was further observed:-- "In view of the abductee's statements made by her before the Magistrate and the police absolving as well as implicating the petitioners, I would say that it would require further inquiry as to which of her three statements is true."
10. In the present case the abductee made three statements including her statement on oath recorded by the S.D.M., Liaquatabad on 3rd March, 1997 absolving Alam of the allegation of abduction and Zina, but in her statement recorded later on under section 164, Cr.P.C. She implicated him and the present applicants also.
11. ' Considering the observations made in the above reported cases and perusing the statements made by the abducted, it is yet to be determined as to which statement of the abductee was correct. I, therefore, hold that the present case of the applicants requires further inquiry and as such I grant bail to the applicants in this case on each of the applicants' furnishing one surety in the sum of Rs,1,00,000 (rupees one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.