Through this application, Abid Hussain petitioner/accused of F.I.R. No,18 of 1999 registered under sections 11/10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 with Police Station Liaqatpur has sought post-arrest bail. The petitioner's post-arrest bail has been dismissed by the learned Additional Sessions Judge vide order dated 27-5-1999 hence this petition.
2. The allegation against the petitioner is that he enticed away Mst. Pathano daughter of Ghulam Hussain on 10th of January, 1999 tor the purpose of committing Zina with her with the help of his seal brother Allah Ditta and his real sister Mst. Shamshad Bibi; he had been committing Zina with her at different places and after a month, she had come back to her parents house with Master Shoib.
3. The learned counsel for the petitioner has argued that the petitioner was married with Mst.
Pathano on 13th of January, 1999 and thereafter she filed a complaint against her parents in which she appeared before the Magistrate and made a categorical statement on 14th of January, 1999 that she is the legally wedded wife of the petitioner and that she has never been abducted by anybody; further argued that Mst. Pathano also had sworn affidavit on 13-1-1999 to the same effect and had indicated her age as 18 years; further argued that Mst. Pathano herself had filed a suit for dissolution of marriage on the basis of Khula before the Judge Family Court at Liaqatpur which is pending adjudication while the petitioner has filed a suit for restitution of conjugal rights in the same Court and both the family suits are pending adjudication; further argued, that the petitioner is in judicial lock -up since 16th of March, 1999 anti six months have passed since his arrest; further argued that according to the statement of Mst. Pathano recorded on 25-2-1999, she admitted that she is about 18 years of age; further argued that according to the investigation conducted by the Crimes Branch, two of the accused have been found to be innocent. As regards the occurrence, it has been recorded that it was a case of elopement; further argued that as the matter regarding the validity of marriage is pending before the Judge Family Court, therefore, the . trial is not likely to commence in the near future. Lastly the learned counsel for the petitioner has argued that the prosecutrix Mst. Pathano has made contradictory statement at different places; even ' before Magistrate on 14-1-1999, she had admitted her Nikah with the petitioner and further stated that she had left the house of her parents with her own free-will while in her statement recorded under section 164, Cr.P.C. on 25-2-1999, she has resiled from her previous statement. In the circumstances, the petitioner is entitled to the concession of bail due to divergent stances taken by the prosecutrix. In support of his contentions, the learned counsel has placed reliance upon the judgments reported as Abdul Majeed v. The State 1999 PCr.LJ 559.
4. The grant of bail has been opposed by the learned counsel for the complainant by asserting that against the petitioner, charge is under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 which falls within the prohibitory clause, further argued that Mst.
Pathano in her suit for dissolution of marriage has categorically stated that she was subjected to illicit intercourse by the petitioner and she was made to thumb-mark and sign the Part of Nikah without her consent, hence, in fact Pert of Nikah has got no legal sanctity as there was no Nikah with the free consent for the complainant has placed reliance upon the judgment reported as Ali Shah v. State (1990 PCr.IJ 1556), and lastly the learned counsel has argued that the prosecutrix was a minor, therefore, the petitioner does not deserve the concession of bail.
5. The learned counsel appearing on behalf of State has fully supported the contentions raised by the learned counsel for the complainant.
6. From the F.I.R., it appears prima facie, that it is a case of elopement and not Zina-bit-Jabs. The prosecutrix Mst. Pathano has contracted marriage with the petitioner on 13th of January, 1999 and in support thereof, Pert of Nikah Nama is available on the records, wherein she has been shown to be of 18 years. On the very next day from Nikah i,e, 14th of January, 1999, she has filed a complaint against her parents before Magistrate and made statement, specifying therein that she is young and mature and being husband and wife, they both (petitioner and the prosecutrix) are living happy marital life; she further stated in her statement that she was never kidnapped nor subjected to Zina-bil-Jabr. When she came back to her parents, after recovery, she took a different stand and made another statement on 25-2-1999, under section 164, Cr.P.C. levelling allegation of Zina against the petitioner and also stated that under duress, her thumb marks were obtained on the Nikah Nama. Furthermore, she had sworn an affidavit on 13-1-1999 signifying herself to be of 18 years.
7. Prom the above analysis, it reveals that Mst. Pathano has made inconsistent statements and hence I hold that there are no reasonable grounds to believe that the petitioner has committed an offence which is covered by prohibitory clause. Moreover, the petitioner is behind the bars for the last more than six months and no purpose would be served if he is detained further. It is well- established principle of law that bail cannot be withheld as a punishment and otherwise the benefit of inconsistency is to be given to the accused at the bail stage.
8. I, therefore, accept this application and direct that pending the conclusion of the trial, the petitioner shall be released on bail provided he furnished bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.