' Ghulam Saddique alias Prince was granted pre-arrest bail by Sessions Judge, D.G. Khan vide order, dated 21-7-2001 in case F.I.R. No,78 of 2001 registered with Police Station Derkhast Jamil Khan on 16-5-2001 for offences under sections 10/11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, VII of 1979.
2. Feeling aggrieved, the complainant/victim Mst. Farzana Mai, has filed the instant petition seeking cancellation of the pre-arrest bail granted to respondent-accused.
3. Brief facts as stated in the F.I.R. Registered on the statement of the complainant are that the complainant was unmarried, virgin living with her brothers Ghulam Shabbir, Khurshid and Ghulam Muhammad as her father had died 7/8 years prior to the occurrence. It was stated that father of respondent asked for the hand of the complainant but complainant's brothers refused to oblige.
On 134-2001 when the complainant was asleep inside the house alongwith wife of her brother, respondent alongwith other accused who were armed with deadly weapons trespassed into house at about 2-00 a.m. And forcibly abducted her after putting her in a Dalla (truck). It has also been alleged in the F.I.R. That the respondent had been committing Zina-bil-Jabr with the complainant and the complainant also signed many blank papers while under the threat of respondent. It was also alleged that the complainant was taken from one place to another and was made to sign blank papers at various places. It is lastly stated that on 3-5-2001 at about 1 a.m. (during night), she got an opportunity to escape, so she escaped and joined her brothers.
4. Initially eight persons were involved in the case as accused, however, during investigation four accused namely Rasool Bakhsh, Ghulam Nazik, Abdul Ghafoor and Ghulam Akbar were declared innocent while Siddique, Ghulam Sarwar, Muhammad Ibrahim and Wazir were found to be accused and report under section 173, Cr.P.C. Was prepared accordingly on 28-7-2001.
5. Learned counsel for the petitioner has sought cancellation of pre-arrest bail on the following grounds:--
(i) that the respondent was the principal accused as he had ravished the complainant who was a minor aged about 13 years. This fact was verified by the school leaving certificate wherein the date of birth of the victim has been reported as 5-4-1988;
(ii) that the delay in the case was duly explained and in any case did not matter while considering an application for pre-arrest bail;
(iii) that no mala fide whatsoever was alleged against the police;
(iv) that the victim has made an elaborate statement against the respondent-accused; and
(v) that the medico-legal certificate supports the version of the complainant as according to the medical certificate, the complainant is about 14/16 years and sexual intercourse has been committed with her.
' In support of the afore-referred submissions, learned counsel for the petitioner has relied upon the case Murad Khan v. Fazal Subhan PLD 1983 SC 82.
6. On the other hand the learned counsel for the respondent-accused has defended the order passed by the learned Sessions Judge by submitting that the pre-arrest bail was rightly granted to the respondent in the circumstances of the case; that in fact the complainant had contracted marriage with respondent of her own free-will and accord on 4-3-2001 and the marriage was registered; that there was a considerable delay in reporting the matter to the police; that the complainant had filed a suit for Jactitation of marriage on 23-5-2001 and it has nowhere been mentioned in the said suit that the petitioner was a minor nor the suit was filed through a guardian; that Khurshid Ahmad brother of the complainant is also a witness in the case who filed Writ Petition No,3250 of 2001 before this Court against the respondent and others for registration of case which came up for hearing on 25-4-2001. In this writ petition brother of the complainant had stated that Mst. Farzana Mai complainant of this case was married with one Mukhtar Hussain'on 19-10-200 and the Nikah was duly registered. A certified copy of the writ petition has also been appended with the record. It is further stated that no accurate proof relating to the age of the victim had been brought on the record like birth certificate or ossification test while the school leaving certificate was not reliable.
7. I have heard the learned counsel for the parties as well as the learned counsel for the State and have also gone through the record. It has been noticed that the complainant admits her thumb- marking the blank papers at various places. Blank papers cannot include Nikahnama because it is on a printed form. This Nikahnama has been produced before the police during investigation and has also been shown to the Court during the arguments. According to this Nikahnama the marriage took place on 4-3-2001. The story that the complainant was abducted on 13-4-2001 is knocked out from this fact.
8. As far as the age of the complainant is concerned her brother himself had filed the afore- referred writ petition in the Court wherein it was stated that Nikah of Mst. Farzana Mai was got registered. It is common knowledge that the Nikah of a minor cannot be registered. The afore- referred Khurshid was present in the Court today and admitted that he had filed the abovettentioned writ petition and also stated about the earlier Nikah of Mst. Tarzana Mai. The respondent-accused has also filed a suit for restitution of conjugal rights and has stuck to his marriage with the complainant. The medico-legal examination certificate has been perused. It has not been stated in the certificate that Mst Farzana was not puberty. According to the certificate there was no mark violence on the person of Mst. Farzana Mai. Zina has been defined in section 4 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979 as follows:-- "Zina.--- A man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being validly married to each other.
Explanation.--- Penetration is sufficient to constitute sexual intercourse necessary to the offence of Zina."
' Adult has also been defined in the said Ordinance. It reads as under:-- "'Adult' means a person who has attained, being a male, the age of eighteen years or, bring female, the age of sixteen years, or has attained puberty." (emphasis supplied).
In this case the respondent has prima facie entered into Nikah with the complainant on 4-3-2001. A perusal of the writ petition filed by Khurshid brother of the complainant for registration of a case for abduction of Mst. Farzana shows that he had stated therein that Mst. Farzana Mai was previously married to one Mukhtar Hussain on 19-10-2000 and the Nikah was duly registered. Subsequently, neither this Nikahnama was produced anywhere during investigation of this case nor Khurshid Ahmad disclosed this fact in his statement recorded under section 161, Cr.P.C. Before the police. It appears that the said Khurshid knew the fact.That Mst. Farzana Mai had left with her own free-will and, therefore, in order to get a case registered he fabricated a story of previous Nikah with one Mukhtar Hussain. The factum of Nikah prima facie in the circumstances of the case, rules out the criminality. In these circumstances the arrest of the respondent would be unjustified.
9. For what has been discussed above I see no merit in this petition which is hereby dismissed.
10. However, it is clarified that all the assessments made by this Court are tentative in nature and would not in any case prejudice the trial of the case.