' Mst. Rukhsana Kausar and Waqar Shah petitioners through the instant petition seek pre-arrest bail in case F.I.R. No,234. Dated 23-12-2002, registered under section 16/10, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), with Police Station Kameer, District Sahiwal.
2. Briefly the prosecution case as per F.I.R. Is that the complainant Muhammad Shahid 5/6 months prior to the registration of the case was married to his maternal-cousin Mst. Rukhsana Kausar (petitioner No,!). About two months prior to the same, Waqar Shah (petitioner No,2) Ghaffar Shah, Zawar Shah, and Zakir Shah had forcibly taken her away in a wagon driven by one Ghulam for the purpose of Zina.
3. It has been contended on their behalf that they have falsely been involved with mala fide intention on the part of the complainant; that she(petitioner No,1) was never married to him (complainant that she was virgin and sui juris and who of her own free-will and consent had married Waqar Shah (petitioner No,2) and they both are living happily as spouses; that she had brought suit for jactitation of marriage against the complainant as he had pretended her falsely to be his legally-wedded wife but actually it was not so; that she had also brought writ petition for quashment of the instant case and the same is pending and in the same report and parawise comments from the S.H.O., Police Station Kameer had been sought for; that she had also brought Writ Petition No,21172 of 2002 and in the same direction was issued to the S.H.O. Of the said police station not to harass her illegally; that she had also brought private complaint under sections 506/109, P.P.C. At Lahore against Maqbool Ahmad and others wherein she has categorically stated that she had entered into Nikah with Waqar Shah on 13-10-2002 and is living happily with him and her parents are threatening her to murder her; that it is a case of two Nikahs, and which of these is correct is to be seen at the time of trial; and that they have joined the investigation with the police and are not required for any further purpose of the same.
4. As against the same, the learned State Counsel assisted by complainant's learned counsel has opposed the petition on the ground that the petitioner Waqar Shah alongwith others had enticed her away who is legally-wedded wife of the complainant and thereafter they both had indulged in Zina with each other; that the police during the investigation have found Nikahnama alleged by the side of the petitioners to be forged one and the complainant as genuine, and that the petitioners have not joined the investigation and hence they are not entitled to the extra-ordinary relief of pre- arrest bail.
5. I have carefully considered the submissions made by both the sides with the help of available record.
6. Allegedly, Waqar Thah (petitioner No,2) alongwith his co-accused about two months prior to the registration of the instant case had taken away Mst. Rukhsana Kausar (petitioner No,1) for Zina. The complainant has alleged her to be his legally-wedded wife. She is present in Court with her learned counsel. She on query by the Court has frankly stated that she was never married to Muhammad Shahid complainant and had lawfully married Waqar Shah (petitioner No,2) of her own free-will and consent. She has further stated that she has brought suit for jactitation of marriage against the complainant before the learned Judge, Family Court, at Lahore and the same is pending adjudication there. She has also brought writ petition for quashment of the instant case. The same is pending adjudication and in the same report and parawise comments had been sought for. She has also stated that nobody had enticed or taken her away and she is living happily with Waqar Shah of her own free-will k and consent.
7. Besides than this, it is a case of two Nikahnamas and which out of these is genuine is a question, which more appropriately can be gone into by the Family Court. The police function is only to collect material/evidence and not to opine about validity 'or otherwise of Nikahnama. Hence the case of the petitioners is fully covered under subsection (2) of section 497, Cr.P.C. Calling for further inquiry into their guilt. The Police Officer present in Court on query has submitted that the petitioners have joined the investigation. In these circumstances, I accept this petition and confirm the interim pre-arrest bail already granted to the petitioners subject to their furnishing fresh bail Bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of the learned Sessions Judge/trial Court. They however, shall join the investigation again with the police as and when so required to do.