RAJA MUHAMMAD KHURSHID, J.- A case under Sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is registered against the petitioner at P.S. Millat Park, Lahore on the ground that he alongwith others abducted Shehla Khawar, a girl of about 21 years of age, and later on forced her to marry the petitioner. The 'Nikah Nama' was allegedly got executed from the abductee under duress to proclaim 'Nikah' between the abductee and the petitioner.
2. Learned counsel for the petitioner has submitted that the abductee Shehla Khawar was a cousin of the petitioner and had willingly gone over to him contracted 'Nikah' with her free will being a sui juris. The 'Nikah Nama' dated 13.8.1998 registered on 14.8.1998, was placed on record to show that the was, however, registered on 15.8.1998. Learned counsel also contended while relying on 1994 SCM R 475 (Supreme Court of Pakistan) Abdul Hamid v. The Slate. 1997 SCM R 37 (Supreme Court of Pakistan) Ghulam Ghaus v. Muhammad Amin and others. PLD 1984 Supreme Court 95 (Shariat Bench) Muhammad Azam v. Muhammad Iqbal and others, 1995 M LD 1290 (Lahore) Muhammad Younas v. The State and 1997 P.Cr.L.J. 1736 (Lahore) Muhammad Aslam v. The State that the plea of 'Nikah' is a good defence and makes it a case of further enquiry whether or not the marriage had rightly been solemnized, which is to be determined by the Court at the trial. Prima facie if the victim is sui juris and has contracted marriage after going over to the petitioner than it would be a good defence for the limited purpose of bail that the parties were married with each other. In this regard, it was also contended that the 'Nikah' deed (Annex 'B') will show that the right of divorce was given to the bride and that a dower amount of Rs.50,000/- was find with monthly allowance of Rs.1000/- in her favour. In the presence of 'Nikah', the allegation of the prosecution that the same was coerced would not be available for the refusal of bail. In this context, it was alleged that the abductee Shehla Khawar made a petition before the Magistrate (Annex 'C') which was duly signed by her and also thumb marked saying that she apprehended danger to her life from her father Khawar Rasul who was allegedly a greedy person and wanted to marry her with an old person after receiving some money. She also stated in the said application that she wanted to contract marriage with the petitioner. That application is dated 11.8.1998 i.e. Before the registration of the case. She had find a writ petition i.e. W.P. No. 16697/98 (Annexure D') in which also she admitted that she was engaged with Muhammad Imran, her first cousin and that she requested that her marriage be solemnized with him but her father allegedly resisted. She further stated in the writ petition that she was 21 years of age and had appeared in the B.A. Examination and as such was sui juris and had contracted marriage with the said Imran i.e. The petitioner on 13.8.1998 and that nobody had abducted her. However, the aforesaid petition was allegedly dismissed in default but the fact remains that the abductee had allegedly admitted the marriage in that petition which was supported by an affidavit. It was accordingly urged that the petitioner having been married with the abductee was entitled to bail.
3. The petition was resisted by the learned prosecutor assisted by the learned counsel for the complainant on the ground that the 'Nikah' deed was got prepared under duress from the abductee while she was in the clutches of the petitioner and his co-accused, and she was also subjected to illicit intercourse by the petitioner as would be clear from her statement recorded under Section 164, Cr.P.C, on 22.8.1998 in which she stated that her signatures were obtained on the papers against her will and under duress. It is, therefore, contended by the prosecution that the petitioner cannot take advantage of the 'Nikah' deed because no valid marriage can be presumed in the absence of free will of the bridle i.e. The abductee. The mere fact that the abductee was sui juris would in no way give any allowance or premium to the petitioner if she was forced to enter into a 'Nikah'.
4. I have considered the foregoing submissions and have also gone through the record. It is not possible to enter into the deeper appreciation of the merits of the case at this stage but for the purpose of bail, it can be said that the 'Nikah' deed, placed on record, can be taken into consideration. The contents of the 'Nikah' deed would show that the bride Shehla Khawar was aged about 21 years and her signatures and thumb mark appended thereto will show that she is well educated as she has claimed to have taken the examination of B.A. The dower amount was find as Rs.50,000/- with a monthly allowance of Rs.1000/- in favour of the aforesaid Shehla Khawar i.e. The abductee. The right of divorce was also given by the bride-groom to the bride as would be clear from column No.8 of the 'Nikah' deed. The Investigating Officer has also stated that although the 'Nikah' witnesses could not be traced but he had contacted the 'Nikah Khawan' who had admitted to have read the 'Nikah' between the petitioner, and the abductee i.e. Shehla Khawar. The contents of Annexure C' i.e. Application duly signed and# thumb marked by Shehla Khawar would also show that she wanted to marry the petitioner of her free will. The same impression is drawn from the contents of Writ Petition No. 16697/98 i.e. Annexure D'. In such a situation, the subsequent story given by her in statement under Section 164, Cr.P.C, after joining her parents would make it a question of further enquiry whether or not the marriage acclaimed by the petitioner with the abductee was valid or invalid. This proposition cannot be answered readily but can be determined at the trial. Finding it a case of further enquiry, the petition is allowed and the petitioner is admitted to bail in the sum of Rs.30,000/- with a surety in the like amount to the satisfaction of the Trial Court.
5. The challan has not yet been submitted although it is ready for submission to the Court. It is strange enough that the case was under investigation since its registration on 15.8.1998, but the interim or final report has not so far been sent under Section 173, Cr.P.C, to the Trial Court, which shows the lethargic conduct of the prosecution in completing the investigation. The petitioner was arrested on 29.8.1998. He cannot be kept under detention for the inactive attitude of the prosecution in submission of challan to the! Court concerned.