Mst. Razia Nawaz through Criminal Miscellaneous No,4672-B of 2000 and Muhammad lqbal through Criminal Miscellaneous No,4394-B of 2000 seek bail in a case registered vide F.I.R. No,117 with Police Station Saddar, Sargodha on 16-5-2000 under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
2. Since the applications emerge out of single F.I.R. I intend to dispose them through this order.
3. Facts narrated in 'the F.I.R. Authored by Muhammad Nawaz, are that on 30-4-2000 his daughter Mst. Razia went to the house of her uncle Muhammad Yar and on 10-5-2000 she was found missing. He alongwith his brother went in search of his daughter, when the witnesses told them that Razia was seen in the company of lqbal going in a vehicle towards Bhalwal. It was stated that lqbal has abducted his daughtter for immoral purpose. The complainant went on to state that earlier Razia was married to Azhar son of Muhammad Hanif.
4. Post-arrest bail was declined by the Additional Sessions Judge, Sargodha on 17-6-2000
5. Learned counsel contended that Nikah with Azhar was solemnized on 27-2-1991 but Rukhsati did not take place and as such marriage with Azhar was not consummated. The Investigating Officer present with record admitted that no Rukhsati of Razia had taken place with Azhar. It was further stated that the date of birth of Razia is 24-12-1983 meaning thereby that when her Nikah with Azhar took place she was hardly 9 years old. Certificate of Board of Intermediate and Secondary Education has been appended showing the date of birth of Azhar to be 15-2-1982 which means that in the year 1991 he too was about 9 years old. Learned counsel further drew my attention to the Nikahnama dated 13-5-2000 whereby Nikah of Razia was solemnized with Iqbal co-accused on the said date when the lady was about 17 years of age. An affidavit executed before the Magistrate First Class, Karachi on 19-5-2000 by Razia Nawaz repudiating the allegations made in the F.I.R. Has also been appended. In this affidavit the lady as asserted her will that being sui juris she is entitled to marry a man of her choice. Learned counsel went on to argue that although the marriage with Azhar is not disputed but the same took place at the time when both Razia and Azhar were below 10 years of age and admittedly no Rukhsati having taken place, marriage with Azhar has not been consummated. Marriage with Iqbal by Razia of her own free will is the exercise of option of puberty indicating her intention to repudiate the marriage with Azhar. In these circumstances, it was urged that no offence has taken place and the petitioners are entitled to bail.
6. Conversely learned State Counsel asserted that in order to exercise the option of puberty a-suit has to be filed after Razia attained the age of 15 years till she became of 18 years of age.
7. I have attended carefully to the arguments addressed by the respective counsel, on this delicate issue involving legal interpretation. My view which I am going to express in the ensuing paragraphs is merely tentative in nature and shall have no effect or influence whatsoever to the proceedings to be undertaken during the trial.
8. In the case of Mst. Sarwar Jan v. Abdul Majid reported in PLD 1965 (W.P.) Pesh. 5, it was held by the learned Single Judge that the option of puberty can be exercised by the girl on attaining age of 18 and the right of annulment continues until she expresses her consent or disapprobation in express terms and withholding of assent to marriage may be expressed in variety of ways i,e, re-marriage before age of 18 or institution of suit for dissolution. This view was reiterated on the basis of an earlier view expressed in the judgment of this Court in the case reported in Ghulam Muhammad v.
Emperor 140 IC (Lahore High Court) 617. It was held in the judgment referred to above that under the Muhammadan Law if a woman who has exercised the option of puberty were to contract another marriage believing that she was entitled to do so, she would not make herself liable to punishment under the Criminal Law. Further it was observed that where a Muhammadan girl was given in marriage during her minority by her mother when she was about 16 years, before consummation of the marriage, she made an application to the Deputy Commissioner repudiating the marriage and married another person, sometime after this, she was not guilty of an ' offence under section 494, Penal Code. Quoting Amir Ali's Muhammadan Law it was further observed that "it does not follow from this that if a woman who has exercised the option were to contract another marriage, believing that she was entitled to do so, she would make herself liable to punishment wider the Criminal Law".
9. The upshot of the discussion is that the marriage of Razia with Iqbal before she has attained the age of 18 years prima facie amounts to repudiation of her marriage with Azhar in the exercise of option of puberty. Prima facie both Razia and Iqbal are entitled to bail as presently there are no grounds to believe that they had committed a cognizable offence although there may be grounds for further inquiry. The matter being of purely legal nature remains to be thrashed by a competent Court of law. Till then it would be not only harsh but unfair to keep the spouses in jail. Resultantly accepting their respective applications I allow bail to Razia and Iqbal provided each one of them furnishes security in the sum of Rs,50,000 with one surety each in the like amount to the satisfaction of the trial Judge.