1. ' This is a bail application filed by the applicants Ismail son of Ghulam Muhammad Magsi and Abdul Rahim son of Nooh Muhammad Magsi, who are facing trial under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in Crime No,16 of 1997 registered at Police Station Khabbar, District Larkana.
2. ' The allegations as contained in the F.I.R. No,16 of 1997 lodged by the complainant Muhammad Ismail son of Muhammad Parial Magsi at the Khabbar Police Station District Larkana on 30-6-1997 at 11-30 hours are that on 26-6-1997 at about 11-00 p.m. He was sitting in his house alongwith his father-in-law Muhammad Morial son of Gulsher and wife's brother Abdul Rasool son of Muhammad Morial when in the bulb light they saw the accused Ayoub son of Aqil armed with a gun, Ismail son of Ghulam Muhammad also with gun, Nooh son of Muhammad Khan with a gun and Abdul Rahim son of Nooh Magsi came to their house and controlled them with the weapons.
3. Ayoub Magsi asked the complainant that he had refused the hand of his daughter Mst. Begum, now they would take her. Saying so, they forcibly kidnapped her and took her away in Jeep standing outside. The complainant party raised cries which attracted their Nekmard Muhammad Waris son of Auta Muhammad Magsi and other co-villagers to whom above incident was narrated.
4. It is alleged in the F.I.R. That on the next day complainant taking Holy Qur'an went to the abovenamed accused and pressed them for return the abductee who, promised to return the abductee after three days, but even after three days she was not returned, hence the above F . I . R .
5. Was lodged.
6. ' The application for bail was moved by the applicant in the Court of Fourth Additional Sessions Judge, Larkana, which has been rejected by the order, dated 30-8-1997.
7. ' I have heard Mr. Ghulam Hyder Baloch, Advocate, for the applicants and Mr. Ali Azhar Tunio, A.A.-G.
8. For the State.
9. ' It is contended by the learned counsel for the applicants that there is delay of four days in lodging the F.I.R., which is fatal to the prosecution case as the delay has not been properly explained by the complainant. It is further contended that the alleged abductee have sworn affidavit on 25-9-1997 before the Civil Judge and F.C.M., Shikarpur wherein she has stated that she is contracting marriage with the main accused Ayoub of her own freewill and choice, he has urged that Nikah between her and the main accused has taken place on 28-9-1997, which is registered, as such, it is yet to be determined as to whether she was abducted or she was a consenting party to such elopement. The learned counsel submits that the case of the applicant requires further enquiry under section 497(2), Cr.P.C. And they are entitled to bail.
10. ' The learned A.A.-G. For the State has vehemently opposed the bail application of the applicants contending that the names of both the applicants appeared in the F.I.R. And they have participated in the abduction of Mst. Begum with the main accused Ayoub. The learned A.A.-G. States that the delay in F.I.R. Has been explained properly and the applicants are not entitled to bail. In support of his contention, learned A.A.-G. Has relied upon 1994 PCr.LJ page 2054.
11. ' I have heard the learned counsel for the applicant and the learned A.A.-G. For the State. I have perused the F.I.R. And also the police papers and the order of the trial Court rejecting the bail application.
12. It is admitted position as per F.I.R. That the alleged offence had taken place on 26-6-1997 at 11-00 a.m. While F.I.R. Was lodged on 30-6-1997 at 11-30 a.m. The F.I.R. Has been lodged after four days and the explanation of the complainant is that next day he went to the accused to return the abductee, who sought three days' time to return the abductee. The explanation does not seem to be convincing at this stage and needs examination and it is yet to be seen after the evidence that such explanation of delay was proper and convincing and the complainant had actually gone to the accused for return of the alleged abductee. It is also to be determined that the abductee had been willing party to the alleged elopement with the main accused Ayoub or she had been abducted forcibly as alleged in the F.I.R. The witnesses of the alleged incident are alleged to be the father-in-law and brother-in-law of the complainant and there appears no independent witness of the alleged abduction. There is an affidavit of the alleged abductee sworn by her before the Civil Judge and F.C.M., Shikarpur wherein she has stated that she was betrothed with the main accused Ayoub, who is her relation. She has further stated in her affidavit that she is contracting the marriage, with Ayoub of her own accord. The learned counsel has also placed the copy of the Nikahnama on the record according to which, Mst. Begum has been married to Ayoub on 28-9- 1997 and the Nikahnama is registered one. From the perusal of the above documents it will appear that Mst. Begum had contracted marriage with Ayoub against the will and wishes of the complainant, who is her father, as such, F.I.R. Was lodged by the complainant against the applicants and the main accused Ayoub. It is not disputed that the alleged abductee is not major or sui juris. She has been shown to be 19 years of age in her affidavit, and the Nikahnama, as such, being an adult is fully competent to marry of her own choice and will. The role assigned to the applicants in the F.I.R. Is that they duly armed with weapons forcibly abducted Mst. Begum. The main allegation of Zina will be against the main accused and not against the applicants. The accused Ayoub is still at large and the abductee Mst. Begum is still not recovered. As such, the involvement of the applicants needs probe into their guilt in connection of the alleged offence. The alleged abductee seems to be a willing and consenting party and whether she was abducted forcibly as alleged in F.I.R. Or she had voluntarily eloped with the main accused Ayoub and subsequently married with him of her own choice requires further enquiry as contemplated under subsection (2) of section 497, Cr.P.C., as such, applicants are entitled to bail.
13. ' In the case of Ali Akbar v. State in 1997 PCr.LJ page 783 in similar circumstances bail was granted to the accused.
14. ' In Mehtab Hussain and another v. State 1995 MLD SC (AJ&K) page 70, bail was granted by the Honourable Supreme Court Azad Jammu and Kashmir, held that the complainant had lodged F.I.R.
15. After a delay of five days and the veracity of the explanation for the delay furnished in the F.I.R. Was to be determined at the trial. It was further held that the documentary evidence was available to show prima facie, the validity of the Nikah of the accused with the female accused which was registered with the concerned authorities.
16. ' In the case of Nawaz alias Ali Nawaz v. State reported in 1992 PCr.LJ page 2456 late Justice Qaiser Ahmed Hamidi granted bail in similar circumstances holding that prosecutrix before contracting marriage with accused had admittedly sworn an affidavit before the Magistrate and that F.I.R. Was lodged after abnormal delay.
17. ' The case-law reported as 1994 PCr.LJ 2054 cited by the learned A.A.-G. Is of no help to his contentions, wherein bail was refused by Lahore High Court on altogether different facts and abductee had implicated the accused in her statement under section 164, Cr.P.C., which is not applicable to the facts of the present case.
18. ' Upshot of the above discussion is that the case of the applicants requires further enquiry as contemplated under section 497(2), Cr.P.C. Bail Application No,212 of 1997 is, therefore, allowed and the applicants are ordered to be released on bail on their furnishing one solvent surety each in the sum of Rs,50,000 (Rupees fifty thousand only) and P.R. Bonds in the like amount to the satisfaction of the learned trial Court.
19. ' By the short order, dated 15-12-1997 I had granted bail to 'the applicants as stated above. The above are the reasons of my short order.
20. ' The findings if any are of tentative nature and in no way be considered while finally disposing of the case. The trial Court will be at liberty to reach its own independent finding after the evidence is recorded.