ASIF SOHAIL Versus THE STATE

ORDER

1. The applicant is facing trial under section 11 of Zina (Enforcement of Hudood) Ordinance, 1979, before the learned Sessions Judge, Karachi, East.

2. The allegations against the applicant are that on 27‑2‑1987 Abdul Majeed father of Mst. Razia Sultana lodged a report at Police Station Korangi, Karachi, inter alia alleging therein that he has four children including a daughter namely Mst. Razia Sultana, Who is aged about 14/15 years. It was further alleged that on 26‑2‑1987 he went to attend to his job, at 8‑00 a.m. while his daughter was present in the house. At about 10‑30 a.m. he was called by his wife, who asked him to come to the house, and when he reached there, he was informed by his wife that Mst. Razia Sultana was missing since 9‑00 a.m. He made efforts to find her out but all went in vain. Therefore, he went and lodged report at 11‑00 a.m. in which he showed suspicion in the present applicant.

3. The applicant was arrested, and girl Mst. Razia Sultana was recovered from his possession. She was produced before the Magistrate who recorded her 164, Cr.P.C. statement in which she has implicated the present applicant and has alleged that he committed rape on her. The applicant moved an application for bail before the learned Sessions Judge, Karachi East, but the same was rejected on 2‑4‑1987.

4. I have heard Mr. Khawaja Sharful Islam learned counsel appearing for the applicant and Mr. S. Safraz Ahmad, learned A.A.‑G. for the State.

5. The contention of Mr. Khawaja Sharful Islam is that Razia Sultana is major aged about 17 years and in this connection he has relied on medical certificate issued by Police Surgeon on 15‑3‑1987, which shows that the age of Mst. Razia Sultana is 16/17 years. He has further contended that Mst. Razia Sultana was a consenting party and had filed affidavit before the Assistant Commissioner and Additional City Magistrate First Class Court No. VIII, Karachi East, in which she has stated that she was free and was going to marry the person of her own choice. That this statement was made by her without any coercion. Mr. Khawaja Sharful Islam has also produced a Nikahnama which shows that she had married the applicant on 2nd March, 1987.

6. Mr. S. Sarfraz Ahmad learned A. A.‑G. appearing for the State has frankly conceded to the grant of bail in view of the above circumstances.

7. I have considered the contention of the learned counsel and have also gone through the police papers.

8. Admittedly the age of Mst. Razia Sultana is 16/17 years, and there is no allegation in the F.I.R. that she was forcibly taken away by anybody. On the contrary a bare reading of F.I.R. will show that she had left the house of her parents with her own free will which is further supported by the fact that she appeared before the 1st Class Magistrate and gave such an affidavit. Of course, she has implicated the present applicant in her 164, Cr.P.C. statement, but looking to the circumstances of the case, and the fact that she was not referred to the medical officer by the Investigating Officer for examination with regard to rape alleged to have been committed on her, it is a case of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C.

9. I, therefore, direct that the applicant shall be released on bail on furnishing one surety in the sum of Rs.30,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.

10. S.A./A‑204/K ????????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.