GHULAM ABBAS ABRO Versus State
ORDER
MUHAMMAD SALEEM JESSAR, J.--- Through the captioned bail application, Applicant Ghulam Abbas Abro seeks his release on bail in Crime No.431/2017, under section 496-A/34, P.P.C., registered at Police Station SITE Super Highway Industrial Area, Karachi. The case has already challaned by the police on 19.09.2017 and the same is now pending trial before the Court of Xth-Civil Judge/Judicial Magistrate, Malir, Karachi. It appears that the Applicant/accused has preferred his bail plea before the Court of learned Sessions Judge, Malir, Karachi, who subsequently assigned the same to Ist Additional Sessions Judge, Malir, Karachi as Bail Application No.1187/2017 but his request was declined by the trial Court vide order dated 22.09.2017.
2. Crux of the prosecution case as unfolded by the Complainant Muhammad Javed in the FIR are that on 30.08.2017 complainant has gone to Cattle Mandi and when he came back to home, he did not find his daughter namely Mst. Aisha at his home and cash of Rs.70,000/- and two tola gold was also missing from his home. Thereafter, complainant searched his daughter and came to know that his daughter is taken away by accused Ghulam Abbas Abro son of Muhammad Paryal and three others with intent that she may have illicit intercourse with the accused persons.
3. I have heard learned Counsel for the parties and have gone through the material made available on record.
4. Mr. Khadim Hussain Magsi, advocate for the applicant contended that the case against the applicant is false one and is nothing but bundle of lies accumulated by the Complainant. He further contended that the applicant has contracted marriage with alleged abductee Mst. Ayesha according to her own free-will and to such effect, she executed her affidavit of free-will, besides, Nikahnama has also been handed down. He argued that after registration of the case, alleged abductee Mst. Ayesha has filed Constitution Petition bearing No.S-895/2017 (re-Mst. Ayesha v. SHO, SITE Super Highway Industrial Area, Karachi and others) before Circuit Bench of this Court at Larkana on 14.09.2017 and her statement was also recorded before the Court on 28.09.2017 to the effect that she has not been abducted or enticed away by anyone including applicant/accused Ghulam Abbas Abro and she, being adult, has exercised her right of free-will. Learned counsel further argued that 164, Cr.P.C. statement of alleged abductee Mst. Ayesha was also recorded before Xth-Civil Judge/Judicial Magistrate, Malir, Karachi on 25.10.2017. He submitted that as far as earlier Nikah with one Asim Bashir is concerned, she had never contended in her affidavit of free-will and, therefore, the said Nikahnama on the face of it appears to be bogus one and has been maneuvered by the complainant/father of alleged abductee Mst. Ayesha only to deceive her and to keep the applicant behind the bars. He further submitted that the date of affidavit of her free-will and Nikahnama is 30.08.2017 and, according to him, said Nikahnama duly admitted by Mst. Ayesha carries value. In support of his contention, he has placed reliance upon the case of Muhammad Mateen v. The State (2005 PCr.LJ 240).
5. Conversely, Ms. Rahat Ehsan, Additional P.G. assisted and Mr. Abdul Rehman, advocate representing the Complainant along with alleged abductee, have vehemently opposed the bail application on the ground that the alleged abductee has categorically implicated the applicant in commission of the offence and the offence, being heinous one, the applicant does not deserve any concession of bail. She, however, could not controvert the factual with regard to Constitution Petition earlier filed by the alleged abductee Mst. Ayesha before Circuit Bench of this Court at Larkana. Alleged abductee Mst. Ayesha, present in Court, also opposed the bail application halfheartedly and started weeping before the Court and to such effect on a query by the Court that why she brought tears in her eyes, she could not control herself and did not response the query asked by the Court.
6. I have given due consideration to the arguments advanced by the learned Counsel for the parties and have carefully scanned the record with able assistance of learned DPG.
7. Before discussing the submissions of learned Counsel, it will be conducive to reproduce the prayer of petition filed by alleged abductee Mst. Ayesha at Circuit Bench of this Court at Larkana, which is reproduced as under:- a) To declare the Respondents Nos.1 to 3 to provide protection to marriage of the petitioners their lives, liberty, property and family and restrain the Respondents from causing any harassment for the petitioners and issue a writ of prohibition restraining the Respondents from causing harassment for the petitioners and from involving them into false criminal cases. b) Direct the Respondent No.1 not to arrest the petitioner and other relatives of her husband in. Crime No.431/2017, and this Hon'ble Court may kindly quash the FIR No.431/2017 under section 496-A of Police Station SITE Super Highway Industrial Area, Karachi, as same is false and fabricated. c) Any other equitable relief be granted to the petitioner.
8. It appears that alleged abductee has sworn her affidavit of free will before Justice of Peace at Karachi on 30.08.2017, wherein she has never contended that she is already wedded wife of one Asim Bashir even she had stated that neither she has been abducted, enticed away for any illegal intercourse but she, being adult, by exercising her right of free-will, has entered into Nikah with the applicant/accused Ghulam Abbas Abro, which is her right. She further stated that her parents were intending to marry her with an unknown stranger and she had never taken anything from her parents' house except apparels. As far as 164, Cr.P.C. statement of the alleged abductee is concerned, the same was recorded at belated stage viz. 25.10.2017, after execution of affidavit of free-will and after filing of Constitution Petition before Circuit Bench of this Court at Larkana and, therefore, contentions raised by the learned Counsel for the applicant/accused carries weight that when she went to appear the Court, she was taken away by her parents in collusion with local police and thereafter she, under coercion, has stated contrary to the view earlier taken by her in her affidavit as well as in her petition. The question of her abduction, in view of above circumstances, requires further probe and is to be thrashed out by the trial Court at the time of recording evidence.
9. It is well-settled principle of law that the validity of Nikah is to be considered and decided by the Family Court and not by the Criminal Court and a Muslim sui-juris female/lady can enter into a valid Nikah/marriage on her own free-will etc. and as far as the controversy as regards the validity of marriage is concerned, it purely falls within the exclusive domain of Family Courts (Act XXXV), 1964. In this context I am fortified with the cases of Muhammad Zahoor Ahmed v. The State (2010 PCr.LJ 113), Muhammad Akhter and another v. The State and another (2010 PCr.LJ 373), Amir v. The State and another (2010 PCr.LJ 961) and the dictum laid down by Hon'ble Supreme Court of Pakistan in the case of Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another (PLD 2004 SC 219) and the case of Tilla Muhammad v. The State and another (2011 YLR 2273) where a bench of Peshawar High Court while granting the bail to the accused has held as under:-
"In the case in hand the father of the lady and her first alleged husband have not yet filed any suit for jactitation of marriage, which creates doubts. In another similarly case, the Hon'ble Lahore High Court in the case of Nighar Abbas and others v. Muhammad Zarif 2004 PCr.L J 620 has held that:-
"A lady whose age was about 20 years and sui-juris could enter into a valid Nikah, with a man of her choice by refusing her abduction.".
It was also held that:-
"Validity of the Nikah of the lady is to be considered and decided by Family Court and not Criminal Court".
8. In this case, the lady Mst. Samrina Bibi appeared in the Court of learned Sessions Judge, Tank, on 13.11.2000 and recorded her statement wherein she deposed that she entered into Nikah with accused- petitioner on her own free-will; that she was never abducted by him. She also disclosed her age as 18 years at the time of occurrence. This statement also reveals that prima facie no abduction has taken place and the petitioner cannot be connected with the offence for which he is charged unless some facts are proved at the trial stage against him.
9. Since Mst. Samrina Bibi at the time of Nikah with the petitioner and per her statement before learned Sessions Judge, Tank, was aged about 20/21 years therefore, she was sui-juris and could enter into a valid Nikah on her own free-will. I may rely upon PLD 2004 SC 19 wherein it is held that:-
"A sui-juris Muslim female can enter into a valid Nikah/marriage on her own free-will".
10. Nothing incriminating, as alleged in the FIR, has been recovered from the possession of applicant, which may show that the contention raised in FIR is genuine one. There are two Nikahnamas, of them which one is genuine or correct is a question, which also requires evidence and both parties can agitate their claim before competent forum by filing proper application/suits etc and in my humble view, at this juncture, the case of the applicant requires further inquiry as contemplated under subsection (2) of section 497, Cr.P.C.
11. In view of the above circumstances, prima-facie, the applicant has successfully made out a case for grant of bail. Consequently, by short order dated 01.03.2018, bail was granted to the applicant/accused Ghulam Abbas Abro subject to his furnishing solvent surety in the sum of Rs. 200,000/- (Two Hundred Thousand) and P.R. bond in the like amount to the satisfaction of Xth-Civil Judge/Judicial Magistrate, Malir, Karachi. These are the reasons in support of my short order dated 01.03.2018.
12. Needless to mention here that the observations made hereinabove are tentative in nature. The trial court shall not be influenced by such observations while deciding the case of applicant/accused on merits.
13. The Criminal Bail Application stands disposed of in the above terms.
MQ/G-23/Sindh Bail granted.