' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal is directed against the judgment and order passed by the Shariat Court of Azad Jammu and Kashmir on 26-2-1998, announced on 5-3-1998, whereby the appellant, herein, was declined the concession of bail.
2. The necessary facts, leading up to the present controversy, are that complainant Khalid Hussain, the brother of Mst. Asia Bano, claimed to have lodged a report about the disappearance of his sister at Total Chowki, on 14-10-1997, stating therein that he was in England wherefrom he heard about the death of his father upon which he came back home on 28-8-1997. In his house along with his mother his two sisters were living. As usual when on 10-10-1997, early in the morning, he awoke from the bed and found that his sister Asia Bano was missing. Mst. Asia Bane's husband used to live in England. He and his other family members had been searching Mst. Asia Bano in the houses of their relatives and next of kins but she despite the search was not traceable. It was prayed that a report for disappearance of Mst. Asia Bano may be registered and the necessary proceedings be started. Subsequently, another report by said Khalid Husain was lodged at Police Station City Murmur on 15-11-1997, in which it was disclosed that complainant after lodging the report for the disappearance of his sister at Police Chowki Total continued her search and ultimately it came to his knowledge that Manama Hussain Shah, accused-appellant, enticed his sister and took her along with the help of two other persons namely Raja Zafar Iqbal alias Raja Kala and Syed Nazim Shah, residents of Samahni, Tehsil Chamber, who were also involved in the incident. It was also alleged in the F.I.R. That accused Manama Hussain Shah has taken away his sister for the purpose of committing Zina who wanted to marry her forcibly. On this report a case under sections 10, 11 and 16, Offence of Zina (Enforcement of Hudood) Act, was registered against the accused-appellant. The accused-appellant in the first instance moved an application before Tehsil Criminal Court for his release on bail failing which he moved the District Criminal Court, Mirpur. The said Court also declined the concession of bail to the appellant vide order, dated 23-12- 1997. A revision petition taken to the Shariat Court was also dismissed vide the impugned order of the Shariat Court, dated 26-2-1998, announced on 5-3-1998, mainly on the following grounds:-- "(a) That the alleged abductee was recovered from the bedroom of the accused appellant in the presence of witnesses and this fact is not denied by the accused petitioner. The accused appellant claims her (abductee) as his legally-wedded wife by producing a Nikahnama. And a certified copy of statement of Mst. Asia Bano before a Magistrate.
(b) That the fact of marriage with Raja Shabir is also admitted by the accused petitioner by placing a divorce deed on file. A copy of Nikahnama of Raja Shabir and Mst. Asia Bano is also on record.
Both the documents 'referred to above when seen while placing them in juxtaposition, the signatures of Raja Shabir on the documents are quite different one on the face of it. It prima facie suggests that the marriage between Raja Shabir and Mst. Asia Bano still subsists and second marriage claimed by the accused petitioner with the alleged abductee prima facie connects hint with alleged offences; and
(c) That the discretion exercised by the Courts below appears neither perverse nor it has been exercised arbitrarily. Therefore, it deserves no interference."
3. In support of the appeal, it was vehemently contended by Mr. Abdul Majid Mallick, the learned counsel for the appellant, that the orders of the Shariat Court and the subordinate Court are liable to be set aside as the same are illegal and bad in law. The learned counsel submitted that according to the prosecution itself the incident took place on 10-10-1997, whereas the report was lodged on 15-11-1997. The alleged report, dated 14-10-1997, in view of the learned counsel for the appellant, was a concoction and fabrication and the same was entered in the Daily Diary of police on the day of F.I.R. i,e, on 15-111997. The learned counsel strenuously contended that Mst. Asia Bano was divorced by her previous husband and that she was a major lady. She contracted marriage with the appellant of her free accord and made a voluntary statement before the Magistrate at Bhimber on 10-10-1997, wherein she has deposed that she is a sui juries and understands pros and cons and out of her free accord wanted to marry with Manazar Husain Shah as her relatives wanted to sell her in the hands of some other persons, on account of which her life would be ruined. Her father has died. She apprehends a danger to her life as her relatives wanted to remove her from the scene. As a matter of record she wanted to get her statement recorded. This statement was recorded by the Sub-Divisional Magistrate on 10-10-1997, and before him Mst. Asia Bano was recognised by Ch. Gulag Ahmed, Advocate. The learned counsel submitted that on the same day, i,e, on 10-10-1997, Mst. Asia Bano entered into a Nikah ceremony with accused-appellant, which was registered on 13-11-1997, in presence of the Nikah witnesses and the Nikah was performed by Haji Amir Muhammad of Union Council Bhimber. According to the learned counsel a cursory glance would show that signatures of Mst. Asia Bano on Nikahnama as well as on her statement before the Sub-Divisional Magistrate are similar. In the said Nikahnama with the accused-appellant Mst. Asia Bano has been shown as a divorced lady, but when Mst. Asia Bano was recovered by the police, after the detention of about more than a month, under the duress and threat extended to her, she made a statement before the Magistrate at Mirpur on 19-11-1997, attributing various allegations against the appellant that he by deceitful means enticed her. It was alleged by her in the statement recorded under section 164, Cr.P.C. That the accused developed relations with her on the introduction of her uncle who assured her that she would become all right as the accused used to administer amulet by dilating it in the water and after its use most of the disease disappear. The accused used to come to Mst. Asia Bano's house off and on and stay there for 2 to 3 days. One day he told the abductee that after 3 days he would come again and take her somewhere to which she refused that she could not go alone whereupon the accused told her that if she would not go with him the whole exercise will go in vain. Ultimately on the night of 9/10th October, at 2 a.m. The accused-appellant came to the house of Asia Bano and took her in a car on the pretext that his wife was also sitting in the car, she came and sat in the car. She found no other lady sitting in the car. Then the accused after a drive of about 2/3 hours took her to a room where a table and a chair was lying. It was at that place that a blank paper was got signed by the accused from the abductee. Then ultimately the accused took the abductee to his house in Samahni wherefrom she was recovered by the police. The learned counsel strenuously contended that the statement of abductee recorded under section 164, Cr.P.C. After a period of more than one month itself depicts a picture of her dubious character. The learned counsel submitted that it looks strange that a lady who was born in Great Britain and was brought over there in an atmosphere where everybody could move freely from one place to another and could decide about her future with her free will without any pressure from any corner, would go out of the house with a stranger at such odd hours of night and that too in presence of other inmates of the house without any protest or against her consent does not appeal to a common mind. According to the learned counsel it becomes all the more doubtful that accused-appellant had been visiting the house of Mst. Asia Bano frequently for months prior to the occurrence.
4. Ch. Muhammad Azam Khan, the learned counsel for respondent, vehemently opposed the grant of bail to the accused on the ground that the accused through deceitful means enticed away Mst.
Asia Bano and committed sexual intercourse upon her without her consent. The initial statement of Mst. Asia Bano and the signature of Mst. Asia Bano on the Nikahnama, executed by her in favor of accused-appellant, were secured by the accused under duress and by extending threats as such the accused-appellant was fully connected with the offences alleged to have been committed by him. The learned counsel also explained that the Nikahnama produced by the accused-appellant was fake and fictitious and was prepared to save him from the consequences of the heinous offence that he had committed. The learned counsel argued that on 6-12-1997, Mst. Asia Bano got a divorce-deed from her husband Shabir Ahmed from England and contracted another marriage with Akhtar Mahmood, son of Muhammad Alam, on 14-3-1998. The prosecution has placed on record a document Annexure "R/2", which is claimed to have been written at England. The learned counsel in support of his contentions relied on reported cases titled Syed Abrar Hussain Shah v. The State 1995 SCR 372; Tahir Muhammad Durrani v. Shahid Hussain Kazmi and others PLD 1986 AJ&K 31 and Hanifa and 3 others v. The State 1985 PCr.LJ 993. On the strength of the aforesaid authorities it was argued that the accused-appellant does not deserve the concession of bail and the same was declined by all the Courts below including the Shariat Court, thus, the discretion exercised in favor of declining the bail was neither perverse nor contrary to the principles governing the bail matters.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, the bail of the accused-appellant is sought on the ground that there is delay of about 1 month in lodging the First Information Report. Admittedly, Mst. Asia Bano is a major lady who, in the first instance, on 10-10-1997, made a statement before the Sub-Divisional Magistrate, Bhimber claiming therein that she was aware of the consequences that she was making a voluntary statement and wanted to marry with the accused-appellant. She voluntarily entered into Nikah with Manazar Hussain Shah, in support of which a Photostat copy of Nikahnama is duly placed on record. After about 1 Thoth of the occurrence she made a contradictory statement before another Magistrate at Mirpur that she was enticed and subjected to sexual intercourse. In view of the fact that Mst. Asia Bano is sui juries and the allegation as to whether she was forced to ceremonies Nikah is yet to be looked into. Similarly, the Nikahnama with accused-appellant and subsequently with Akhtar Mahmood on 14-3-1998, are yet to be seen as to which out of them is genuine.
6. Mr. Abdul Majid Mallick, the learned counsel for the appellant, has expressed his strong exception on the alleged deed of divorce, produced by the prosecution by criticising the genuineness of the documents on the ground that the document ex facie shows that it could have been prepared at any time even in Pakistan so as to show that Mst. Asia Bano was previously married woman when entered into Nikah with Manazar Hussain Shah. This document, on the other hand, lends support to the case of defiance that at the time of contracting marriage with the accused-appellant Mst. Asia Bano was already a divorced woman. Be that as it may, the fact remains that this document also requires further probe. These all factors certainly bring the case within the purview of further enquiry.
7. Our aforesaid view is supported by a case reported as Shah Din and others v. The State PLD 1984 Lah. 137, wherein the following observation has been made at page 139:-- "In view of the fact that Mst. Hamida Bibi is sui juris and the allegation as to whether she was forced to solemnize Nikah has yet to be looked into, I consider it to be a case of further enquiry and, therefore, admit the petitioners to bail in the sum of Rs,10,000 (ten thousand) each with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Cantt."
8. In another case titled Muhammad Aslam v. The State 1988 PCr.L.J 2247, the facts were that two versions were given by the prosecution. Abductee first stated that she married with accused after having divorced with her husband when she was living with her father. During second round of investigation she made allegations against the accused. It was observed at page 2248 of the report in a following manner:-- "In the first investigation the statement of Mst. Hamida allegedly abducted was recorded by the Additional City Magistrate No II (South), and she went to live with her father. Thereafter, she married with Muhammad Aslam. On the basis of the statements, the accused was released under section 169, Cr.P.C. During the second investigation, Hamida Khatoon has alleged to have implicated the applicant. In the waz has also died. There are two versions of the prosecution case as stated above.
' I am of the view that case requires further enquiry." Thus, the appellant was released on bail.
9. In another case titled Abdul Samad and others v. The State 1988 PCr.LJ 555, the facts were that the abductee in her two statements before two Magistrates absolving accused of any offence and marrying accused of her freewill. Later on she denied her alleged previous marriage by supporting prosecution before the Deputy Superintendent of Police. The case was held to have fallen within the purview of further enquiry.
10. In the case reported as Mehtab Husain v. State PLD 1995 SC (AJ&K) 70, it was observed by this Court at page 74 as follows:-- "The learned Judge overlooked the facts that documentary evidence (Nikahnama) was produced in favor 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."
11. The authorities referred to and relied upon by the learned counsel for the respondent titled Syed Abrar Hussain Shah v. The State 1995 SCR 372, Tahir Muhammad Durrani v. Shahid Hussain Kazmi and others PLD 1986 AJ&K 31 and Hanifa and 3 others v. The State 1985 PCr.LJ 993, have no relevancy to the case in hand because of distinct facts and circumstances. In the above referred cases, none of the accused claimed their bail on the ground of entering into Nikah with the abductees. Therefore, these are of no help to the case of the prosecution.
12. The observation made by the learned Judge in the Sharia Court that the abductee was recovered from the room of the accused-appellant merits no consideration for the simple reason that when an accused person claims an abductee to be his legally-wedded wife the recovery of the said abductee from his room no more remains an incriminating piece of evidence provided the claim put forth by the accused-appellant is prima facie correct.
13. Keeping in view the facts and attending circumstances of the case, we are of the view that all the Courts below including the Sharia Court have not exercised their discretion in a judicial manner. The mere allegation of an heinous offence against the accused or the gravity of an offence per se is no ground for the refusal of bail to an accused person, unless the accused is prima facie connected with the offences he is alleged to have committed.
14. The nut shell of the above discussion is that the accused-appellant is entitled to the concession of bail in view of facts and circumstances of the case and we order it accordingly. If the appellant furnishes a bail bond in the sum of Rs,2,00,000 (rupees two lac) with two sureties and a personal bond of the same amount to the satisfaction of any Magistrate 1st Class, Murmur or Chamber, he shall be released from the custody forthwith provided he is not wanted in any other case or offence. Thus, by accepting the appeal, we set aside the impugned judgment of the Sharia Court and those of the Courts below.