Mst. Zubeda Mai, Abdul Majeed and Hassan Bakhsh, the petitioners have sought for pre-arrest bail in case F.I.R. No. 184 dated 14-4-2002 originally registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 with Police Station Luddan, District Vehari.
2. Briefly the facts of the prosecution as contained in the F.I.R. Are that Mehmood Bakhsh the complainant had performed the Nikah of her daughter Mst. Zubeda Mai with Yasin but her Rukhsati had not taken place. Majeed, Hassan Bakhsh and Mst. Rani Bibi were on visiting terms with them. In the meanwhile, Majeed had developed illicit intimacy with Mst. Zubeda Mai. He when had suspicion about the same, had stopped them to visit his house.
3. On 7-4-2002, early in the morning, he went to Luddan for the service of tractor. He when returned to his house found that his daughter Mst. Zubeda was not present there. He enquired about her from his were Mst. Amiran, who told him that Mst. Rani had taken her out of the house on the pretext to talk to her. She when did not return, he went out in her search. During the same. Allah Ditta and Naik Muhammad met him and they told him that Majeed and Hassan Bakhsh had taken her away on motorcycle, They had abducted her for Zina.
4. It has been contended on their behalf that they have falsely been roped in with mala fide intention by the complainant; that there is unexplained delay of seven days in lodging the F. I. R.
That Mst. Zubeda had entered into Nikah with Abdul Majeed of her own free will being sui juris but it was to the annoyance of her father/complainant, who had forged Nikahnama showing her Nikah with Yasin while her Nikah with him (Yasin) had never been performed and this is evidence of mala fide on his (complainant) part; that Mst. Zubeda and Majeed are living as husband and were and she has conceived from him and is at advance stage of 8 months pregnancy; that the police have arrayed her (Zubeda) as an accused in the instant case, so the allegation of her forcible abduction as contained in the F.I.R. Stands falsified; that it is a case of two Nikahs and which one is correct is a matter to be determined at the trial; that question of validity or otherwise of Nikah can only be determined by competent family Court and in support of the same reliance has been placed upon the case of Ghulam Ghaus v. Muhammad Amin and others (1997 SCM R 37); that she had brought suit for jactitation of marriage against Yasin and the same was decreed in her favour and against him and the same shows that the case of the prosecution against them is false and based upon mala fide; and that they have joined the investigation and are not wanted for any further purpose of the same.
5. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the application on the ground that Abdul Majeed and Hassan Bakhsh with the active help of Mst. Rani Bibi had abducted Mst. Zubeda Mai; that her Nikah with Abdul Majeed is run away marriage and the same is violative of social and religious norms and so such an act may be discouraged; that Yasin had brought application to set aside the decree in the suit for jectitation of marriage in favour of Mst. Zubeda and against him; and that the offence is heinous in nature.
6. I have carefully considered the submissions advanced by both the learned counsel for the parties with the help of record.
7. It is a case of two Nikahs. One alleged by the complainant with Mst. Zubeda and the other claimed by her and Abdul Majeed to be between them. Mst. Zubeda has owned her Nikah with him (Abdul Majeed).
8. In view of her owning Nikah with Abdul Majeed, the question that if she was abducted forcibly as mentioned in the F.I.R. Or that she had entered into Nikah with him of her own free will seriously needs consideration.
9. Besides than this, admittedly, she had brought the suit for jactitation or marriage against said Yasin and the same I was decreed in her favour. Although it is the contention from the complainant's side that application to set aside that decree has been' moved but the same (decree') still holds the field as having not been set aside.
10. Anyway, when there may be question of two Nikahs, then which one is correct is a matter which requires further probe/inquiry. The validity or otherwise of --Nikah is always to be gone into by competent Family Court. So in my view there is scope of further inquiry into the guilt of the petitioners. Their case is, thus covered under subsection (2) of section 497, Cr.P.C. In this regard, the reliance is placed upon the case of Ghulam Ghaus v. Muhammad Amin and others (1997 SCM R 37).
11. They had admittedly joined the police investigation. They are not wanted for any further purpose of the same.
12. In these circumstances, I find that the case for pre-arrest bail to them has been made out. Thus, their application is accepted and the interim pre-arrest bail already granted to them is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Vehari/trial Court.
13. However, they shall join the police investigation again if and when so required to, do.