1. ' The facts leading to present application for bail are that applicants/accused Aurangzeb and Mst.
2. Mehnaz are facing trial in Sessions Case No,1 of 1999 before learned IIIrd Additional District and Sessions Judge, Karachi West, under section 16, Offence of Zina (Enforcement of Hudood)
3. Ordinance, 1979. The said case has arisen out of F.I.R. No,223 of 1998 of Police Station Saeedabad, Karachi West.
4. ' The brief facts of the prosecution case as disclosed in F.I.R. Lodged by complainant Shah Latif on 20-8-1998 are reproduced hereinbelow:-- "I am residing on the above address with my family members and working as labourer in Tea Factory. My daughter Mehnaz aged about 24 years was married with one Fakir Muhammad at my native village about 4 years back. After one year of the marriage relations between spouses became strained, therefore, she is living with me since last 3 years. On 13-8-1998 I went on my night shift duty and returned home in the morning at about 9 a.m. I was informed that Mehnaz after giving the amount for milk to children went away and she has not returned so far. I remained in her search and also informed Muhammad Miskeen and others. I have come to know that Aurangzeb had kidnapped my daughter for the purpose of Zina as he had demanded her hand from me for the purpose of marriage but I declined. Now I have come for report. Investigation may be made."
5. ' During the course of investigation applicants/accused were arrested and they were sent up to stand trial.
6. ' The applicants/accused applied for bail before the trial Court but it was declined by impugned order, dated 5-3-1999.
7. ' I have heard Mr. Abdul Hameed Lakhani learned counsel for the applicants/accused as well as Mr. Nisar A. Khan learned counsel for the complainant and Mr. Muhammad Saleh Panhwar learned counsel on behalf of Advocate-General for the State. The learned counsel for the State has opposed the bail of plea of applicant/accused Aurangzeb whereas conceded to the grant of bail to applicant/accused Mehnaz.
8. ' The perusal of the material placed on record shows that alleged incident occurred on 13-8-1998 at about 7 a.m. And report was lodged on 20-8-1998 at about 3-45 p.m. Whereas police station is situated at the distance of about 2 kilometers. No possible explanation with regard to this inordinate delay has been given by the prosecution. The photostat copies of affidavit and Nikahnama filed in support of bail plea show that on 24-7-1998 applicant/Accused Mst. Mehnaz appeared before the Magistrate First Class, Karachi Central before whom she swore an affidavit wherein she stated that she was a divorcee and that she wanted to marry with applicant/accused Aurzangzeb voluntarily of her own accord without any duress, coercion or compulsion but against the wishes of her parents who wanted her to marry with a person whom she disliked. On the same day she performed Nikah with applicant/accused Aurangzeb. The Nikahnama was registered in the office of concerned Union Committee. Both the applicants/accused were arrested on 15-12-1998.
9. The statement under section 161, Cr.P.C. Of Mehnaz was recorded by Investigating Officer wherein she claimed to be divorcee and did not deny factum of her voluntary marriage with applicant/accused Aurangzeb. She was produced for 164, Cr.P.C. Statement before the Magistrate wherein also she has reiterated that she entered into marital tie with applicant/accused without coercion or compulsion. No evidence has been produced from where it could be deduced that her previous Nikah with Fakir Muhammad is still subsisting nor the said Fakir Muhammad was examined by the prosecution during the course of investigation and he is not even cited as prosecution witness in the case. Even previous Nikahnama has not been placed on record. The date of the affidavit of applicant/accused Mst. Mehnaz and her Nikah with applicant/accused Aurangzeb does not tally with the date of her disappearance/kidnapping shown in the F.I.R.
10. ' The upshot of the above discussion is that the case of the applicants/accused necessitates further enquiry as contemplated under section 497(2), Cr.P.C. And they are entitled to bail.
11. ' By my short order, dated 25-3-1999 the applicants/accused were granted bail in the sum of Rs,1,00,000 (Rupees one lac only) each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court and above are the reasons for the same. The observations made hereinabove are of tentative nature and the learned trial Judge shall not be influenced by them in any way while deciding the case on its own merits after independently avaluating the evidence recorded at the stage of trial.