RAHIM DAD vs THE STATE
This petition for post-arrest bail arises from a criminal case registered under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sections 420/468/471 of the Pakistan Penal Code 1860, involving the alleged abduction of a minor girl. The core legal question is whether the petitioner is entitled to bail based on the claim of a valid Nikah (marriage) contracted with the alleged minor abductee, despite the girl being under the age of 16 and under the lawful guardianship of her father at the time of the incident. The Court held that the petitioner is not entitled to the concession of bail. The Court reasoned that even if a marriage were valid under Islamic law upon puberty, the offence of kidnapping under section 363 of the Pakistan Penal Code 1860 was prima facie completed when the minor was removed from her father's lawful guardianship. The key principle laid down is that a claim of marriage does not negate the prima facie commission of the offence of kidnapping a minor from lawful guardianship.
- Does the claim of a valid marriage between an accused and a minor girl negate the prima facie commission of the offence of kidnapping from lawful guardianship?
- Is an accused entitled to bail where the prosecution material indicates the abduction of a minor from the custody of her father?
- Does the removal of a minor girl from the custody of her father constitute an offence under section 363 of the Pakistan Penal Code 1860, regardless of subsequent claims of marriage?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 363, Pakistan Penal Code 1860
ORDER
The petitioner is required as an accused in the F.I.R. No.49 dated 23-7-2000 registered with Police Station Basal District Attock under sections 10/11 of offence of Zina (Enforcement of Hudood)
Ordinance, 1979 read with sections 420/468/471, P.P.C. Registered at the instance of Habib Khan father of Mst. Uzma Bibi abductee aged about 14/15 years, that the petitioner who was working in nearby field was on visiting terms with the complainant enticed away his daughter on the night intervening 16/17 of July, 2000. The matter was reported on 23-7-2000. The petitioner obtained his interim bail in anticipation of his arrest which was dismissed on 20-9-2000, therefore he is confined in judicial lock-up.
2. The bail is sought on the ground that in fact the petitioner has contracted marriage with abductee Uzma Bibi, therefore, no offence has been committed as he had entered into a valid Nikah with her. Further argued that a statement under section 164, Cr.P.C. Was got recorded therein Mst. Uzma Bibi admitted having been married to the petitioner and refuted the various allegations levelled in the F.I.R. It is further contended that may be the abductee is mentioned as 14/15 years and a school leaving certificate in this behalf has also been produced by the complainant but after attaining puberty the abductee can validly contract marriage under Islamic Law. Application was moved at the first instance before the learned Additional Sessions Judge who rejected the same on 25-10-2000 after passing an elaborate order and making reference to a large number of authorities on the subject holding that no valid marriage could be contracted and also that first application for bail before arrest had been rejected and almost on the same grounds application was repeated, therefore, no fresh ground accrued in favour of the petitioner to claim the concession of bail.
3. Before this Court as well, the main thrust of argument is that petitioner has entered into 'a valid Nikah on 22-7-2000 which was duly registered with Union Council in Lahore whereas admittedly the complainant and his daughter are residents of District Attock. No one from the complainant side participated in the alleged Nikahnama. On a question as to whether the minor can contract a marriage, the learned counsel submits that after attaining puberty a valid marriage under Islamic Law can be contracted and submits that in support of his plea a number of rulings are available.
4. The bail has been opposed by the learned counsel for the State as well as for the complainant on the ground that abductee being minor was enticed away by the petitioner, no valid Nikah has been executed, tire same is forged and fabricated. According to the learned counsel for the complainant alleged abductee is the third wife of the petitioner but no such disclosure has been made in the relevant column No.21 of the Nikahnama.
5. I have heard the arguments and perused the relevant record. As regards offence of Zina alleged against the petitioner the same is in no way denied because it is admitted that Mst. Uzma Bibi joined the petitioner as his wife and marriage has been solemnized in between the petitioner and her. Meaning thereby that the petitioner and the abductee are maintaining marital relations.
However, its authenticity or validity is the question which will be determined during the course of trial. Mere production of Niakhnama in between the petitioner and minor girl does not prima facie give rise to a presumption that a valid marriage in between them had taken place, especially when no one from the side of the complainant who is father of the girl participated in the Nikahnama which was registered at a far off place in Lahore.
6. The learned counsel for the petitioner perhaps has not adverted to another aspect of the case that on the basis of material collected by the prosecution so far, the abductee is minor aged less than 16 years. She was abducted on the night in between 16/17 July, 2000 when she was under custody and guardianship of her father. The moment she was removed out of the custody and guardianship of the father offence under section 363, P. P. C. Would be completed under which any person who kidnaps a minor girl under the age of 16 from lawful guardianship, shall be punished with R.I. Which may extend to seven years. Even if it is assumed that the petitioner's contention is supported by some authorities that after attaining puberty a valid marriage can be contracted under Islamic Law, the fact remains that the offence under section 363, P.P.C. Would be clearly constituted because in between 16/17 July, 2000 and 22-7-2000 when admittedly the minor was with the petitioner they were not man and wife. Complainant's allegation that Mst. Uzma was abducted for an illicit purpose finds support from petitioner's own version.
7. The offence committed by the petitioner who is already married twice is not only illegal but is also contrary to all norms of morality and social standard. I am, therefore, not inclined to exercise the discretion in his favour. This petition as such is dismissed.