GHULAM SAKINA Versus THE STATE
ORDER
This is a petition for post-arrest bail moved by the petitioners who are accused in a case under Ss. 10/11 and 16 of Offence of 'Zina (Enforcement of Hudood) Ordinance VII of 1979 registered at Police Station Saddar Jhang vide F.I.R. No. 478/86 dated 29-12-1986.
2. Prosecution case as set up in the F.I.R. is that Sajjad Hussain petitioner alongwith his co-accused Sultan abducted the complainant's sister Mst. Ghulam Sakina aged 14 years on 23-12-1986 for the purpose of illicit intercourse. It was alleged in the F.I.R. that Sajjad Hussain had developed illicit relations with Mst. Ghulam Sakina before the abduction. Mst. Ghulam Sakina petitioner No. 1 was arrested by the police on 25-5-1987 and Sajjad Hussain Petitioner No. 2 was taken into custody on 17-6-1987. Both the petitioners moved a petition for bail before the learned Sessions Judge, Jhang who vide order, dated 30-6-1987 dismissed it by holding that Mst. Ghulam Sakina was a minor girl and, therefore, she could not give consent for her marriage. It was also observed by the learned Sessions Judge that the nikah set up by the petitioners was an afterthought.
3. I have heard the learned counsel for the petitioners and the State as also the counsel appearing for the complainant and have perused the police record with the assistance of the learned counsel for the State.
4. It is contended by the learned counsel for the petitioners that Mst. Ghulam Sakina is the paternal-aunt's daughter of Sajjad petitioner. They married each other on 20-7-1986 and their Nikah was duly registered with Nikah Registrar. Reliance is placed on Nikah Nama Annexure D, It is further submitted by the learned counsel that Mst. Ghulam Sakina was major at the time of marriage. He relies upon a certificate dated 3-3-1987 (Annex. E) issued by the Medical Superintendent, District Headquarters Hospital, Jhang wherein it has been opined that Ghulam Sakina was about 20 years of age. Doctor based his opinion on medical examination as also on X-ray report. Yet another contention raised by the learned counsel for the petitioners is that according to the allegations made in the F.I.R., Mst. Ghulam Sakina was only an abductee but subsequently when she did not support the prosecution case, she was made an accused and was arrested.
5. Learned counsel appearing for the State, on instructions, quite frankly concedes that the prosecution has not so far got Mst. Ghulam Sakina medically examined for the purpose of determining her age. He further concedes that the prosecution is also not in possession of any other proof wherefrom age of Mst. Ghulam Sakina could be ascertained. Learned counsel for the State also states that the Investigating Officer has not so far examined any evidence regarding the Nikah set up by the petitioner. Thus, the prosecution at this stage is not in a position to controvert the case of the petitioners that Mst. Ghulam Sakina being major or at least over 16 years of age had married Sajjad petitioner of her own free will and accord. On my enquiry as to how the prosecution made list. Ghulam Sakina an accused when originally she was only alleged to have been abducted by petitioner No. 2, learned counsel for the State submits that this was done by the Investigating Officer after examining 1st. Ghulam Sakina and after recording the statements of Kamir and Shamir. He has read out the statements of Kamir and Sh;:mir from the police file. These statements were recorded by the police on 8-5-1987. 1 would not like to make any comment on the statements of Kamir and Shamir but the fact remains that they were examined long after the registration of the case and they narrate an occurrence much prior to the registration of the case which they did not report at the relevant time.
In the facts and circumstances aforementioned, case of the petitioners that they married each other before the registration of the case, prima facie, appears to be borne out from the present record. In any event, case against them calls for further inquiry. Petitioners are, therefore, admitted to bail in the sum of Rs.20,000 each with one surety each in the like amount to the satisfaction of AC/Duty Magistrate, Jhang.
S.G.D./G-76/L Bail allowed.