MUHAMMAD SALEENI Versus THE STATE

ORDER

1. Bail Applications Nos. 873/87 and 917187 have been filed by applicants Mohammad Salim, Mst. Hanifa arid Abdul Ghaffar who apprehend their arrest by the police as a case under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has been registered against them at P.S. Shah Faisal Colony under F.I.R. No. 259/86. According to the allegations in the F.I.R. the applicants Mohammad Salim and Mst. Hanifa abducted one Zahida Parveen, a young girl, with an intention that she may be subjected to illicit intercourse. According; to the medical certificate issued by the Medical Superintendent, Government Hospital, Bahawalpur the age of the girl is about 18 years.

2. Interim bail was granted to the applicants pending hearing of the bail applications, first to applicants Mohammad Salim and Mst. Hanifa and then to co‑accused Abdul Ghaffar.

3. Mr. Mohammad Akbar Khan, learned counsel appearing on behalf of the complainant, who is father of the girl, has opposed the bail application vehemently. According to him, the applicants are not entitled to bail as;

(1) No mala fides on the part of the police were alleged by them before the learned Court of Sessions;

(2) All the applicants were absconding after F.I.R. was lodged in the case on 19‑11‑1986, and that by itself disentitles them to bail; and

(3) The age of the girl was 14 years and four months at the time of the alleged incident, according to the school leaving certificate produced by her father.

4. None of these contentions have impressed me. No doubt, the order passed by the learned Sessions Court shows that mala fides against the police had not been alleged by the applicants but now mala fides have been alleged in the application filed before this Court as according to the applicants the police are trying to harass them on account of pressure brought upon them by the complainant. The contention of Mr. Mohammad Akhtar Khan in regard to the alleged absconsion of the accused also does not appear to be forceful as absconsion has to be established by evidence. No doubt, it is being alleged that the applicant Mohammad Salim had remained absent from his place of work as a photo copy of a notice served upon the applicant by Assistant Manager, General Services Department, P.I.A. has been filed which shows that he had absented himself from duty without intimation from 18‑11‑1986, but this itself is not sufficient to establish that he was avoiding his arrest in the case. The next contention of Mr. Mohammad Akbar Khan in regard to the age of the girl also does not appear to be very forceful, since, as pointed out earlier, the medical certificate from Government Hospital, Bahawalpur shows the age of the girl to be about 18 years. The learned A.A.‑G. has referred tv another certificate issued by the Police Surgeon, Karachi, according to which, the age of the girl is about sixteen years. The two certificates make it doubtful that the girl was a minor.

5. As against this, Mr. Abdul Khair Ansari has relied upon two statements given by the girl under section 164, Cr.P.C. wherein she has stated that she had married applicant Mohammad Salim of her own free will‑and without any force. A photocopy of the Nikahnama has also been filed which shows that Nikah between applicant Mohammad Salim and the girl was performed at Bahawalpur on 15‑11‑1986. Therefore, it is difficult to assume at this stage that the girl was kidnapped or abducted or that she was kidnapped or abducted with the intention that she may be subjected to illicit intercourse or forced to marry as contemplated by section 11 or 16 of offence of Zina (Enforcement of Hudood) Ordinance, 1979. Applicant Abdul Ghaffar, according to the case of the prosecution, was simply a witness to the Nikah between the applicant and the girl and prima facie he does not appear to have committed any offence of abduction as contemplated by the aforesaid sections of the Ordinance.

6. In view of these circumstances, the learned A.A.‑G. also has not opposed granting of bail to the applicants.

7. For the aforesaid reasons, the interim bail earlier granted to the applicants is confirmed. It may, however, be pointed out that the learned Sessions Court shall not be guided in any manner by the observations made herein while determining the guilt of the applicants at the conclusion of the trial.

8. S.G.D./M‑303/K ???????????????????????????????????????????????????????????????????????????????? Bail allowed.