1. Exemption granted subject to all just exceptions.
2. By this order I propose to dispose of Criminal Bail Application No,486 of 2001 arising out of Crime No,452 of 2000 registered with Police Station Quaidabad, Karachi, in a case under section 11 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979. The bail plea of the applicant was dismissed by the learned 1st Additional Sessions Judge, Karachi Malir vide order dated 24-3-2001.
1. ' The prosecution story as enunciated in the F.I.R. Is that on 6-11-2000 at about 5-00 a.m. The complainant was out on his duty. His wife Mst.Noor Begum and his younger daughter Nazia aged 18 years as virgin were present at the house. He was informed on telephone that due to emergency he should reach at the house and consequently when he reached there his wife told him that Mst.
2. Nazia had gone to the house of Zaffar Khan and is present there. After about 20 Minutes she went there she was apprised that Nazia is missing. It is further alleged in the F.I.R. That complainant went in search of his daughter when he came to know that she has been kidnapped by one Ghulam Abbas with the active support of his brothers namely Ghulam Qadir and Ghulam Nabi for the purpose of forcible marriage. The investigation followed and in the due course the applicant was sent up to stand trial in the Court of 1st Additional Sessions Judge, Karachi Malir.
3. ' 'It has been contended by the learned counsel for the applicant that the incident has taken place on 11-11-2000 at 10-00 a.m. Whereas the F.I.R. Was registered on 13-11-2000 at 9-30 p.m. Which is belated nearly three days and for which no satisfactory explanation has forth-cone. There is no eye-witness of the alleged kidnapping of the victim girl namely Mst. Nazia. It has further been argued by the learned counsel for the applicant that Mst. Nazia had left the house on her own accord and contracted marriage with applicant Ghulam Abbas on her free-will on 18-12-2001.
4. Photostat copy of Nikahnama, from the original, has been produced alongwith this application as Annexure 'B'. It has been further argued that Mst. Nazia had appeared before a Mobile Magistrate/FCM, Highways Hyderabad Division, Hyderabad and sworn an affidavit that she being major and sui juris had left the house on her own accord and contracted marriage with the applicant on her freewill. She has not been kidnapped or abducted by the Ghulam Abbas, applicant No,1, herein. Photostat copy of affidavit of Free-Will of Mst.Nazia has been produced as Annexure 'E'. The learned counsel has also produced a News Clipping of daily Koshish dated 1-2- 2001 in which it has been stated that marriage of the pair was out of love and affection and without any coercion, force and threat from any quarter and in this background the learned counsel for the applicants states that it is a where the applicants could be ' The learned counsel 'appearing for the State fairly conceded to the grant of bail and raised no objection if the applicants are extended the liberty of bail.
5. ' I have carefully considered the arguments of the respective parties and perused the record.
6. Admittedly, the F.I.R. Is belated by nearly three days and no satisfactory explanation has forth- come. There is absolutely no eye-witness to the occurrence. Applicant No,2, Mst.Nazia, aged about 18/19 years has left the house of her parents on her own accord and contracted civil marriage on her free-will which is evident from the Nikahnama, affidavit of free-will, shown before the Magistrate and the news item appearing in daily Koshish Hyderabad. The incident has taken place on 11-11-2000, F.I.R. Was registered on 13-11-2000 whereas the Nikah was performed on 18-12-2000 and the alleged abductee was examined by Medical Officer on 29-1-2001. The woman Medico- Legal Officer, Police Surgeon Office, Karachi in her report disclosed that no marks of violence were seen on any part of the body of Mst.Nazia External genitals normal, vestibule not congested, hymen torn, old healed and vagina admits index finger. The Medical Officer has opined that on the basis of clinical examination, he was of the view that she is not vergo intacta. However, vaginal slide is taken and sent to Medical Analysis.
7. ' In my view in absence of any other evidence direct or otherwise the medical evidence is not enough to substantiate the case of prosecution. Moreso, it has been opined by the Medical Officer that in his opinion the hymen was torn and old healed but he has failed to mention that how much time before or after the Nikah, marriage consummation had taken place. In absence of such opinion it cannot be inferred that it is a case of Zina or a wilful marriage which calls for further enquiry in terms of section 497(2), Cr.P.C.
8. ' Under these circumstances, the applicants are enlarged on bail provided if they furnish surety in the sum of Rs,2,00,000 (Rupees two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.