MOULA BUX vs THE STATE

1. Dismissed as infructuous.

2. Applicant Moula Bux is facing charge under section 11/16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered as Crime No,9 of 2002 of Police Station Abad, District Sukkur.

1. ' The allegation against applicant Moula Bakhsh Jamali is that on 12-1-2002 he alongwith two other unidentified accused persons while boarded in an Auto Rickshaw which was being driven by the accused, intercepted the Rickshaw, in which the complainant, his wife and his daughter Mst.

2. Mubeena aged about 17/18 were taking the wife of complainant for treatment to some doctor. It is alleged that accused Moula Bux and two others who were armed with pistols after pushing the complainant forcibly dragged Mst. Mubeena and put her in the Rickshaw in which all the accused had come and was being driven by accused Moula Bakhsh. The two co-accused pointed their weapons towards the complainant side who remained quiet due to fear. The accused alongwith abductee Mst. Mubeena went away in the Rickshaw. The complainant thereafter raised cries which attracted P.Ws. Asghar Ali and Muhammad Zaheer. All them chased the accused and while coming in front of their Rickshaw succeeded in rescuing Mst. Mubeena from their custody. Complainant thereafter went to inform Muhammad Younis Shaikh who is Nekmard of the Mohallah, who advised the complainant to wait as he will demand a Faisla from accused Moula Bux but since Moula Bux refused to come for Faisla; hence the F.I.R. Was lodged on the third day of the incident.

3. ' An application for bail was filed before the learned IIIrd Additional Sessions Judge, Sukkur, which has been rejected on 26-2-2002; hence the applicant has filed this application.

4. ' Mr. A.R. Farooque Pirzada, learned counsel for the applicant his mainly contended that there is a delay of two days in lodging of this F.I.R. He has further argued that Mst. Mubeena is legally-wedded wife of applicant Moula Bux and has placed on record a Nikahnama according to which Nikah of Mst. Mubeena was performed with accused/applicant Moula Bux on 5-1-2002 and since the applicant failed to meet exorbitant demand of the complainant; hence latter became annoyed with him and managed this false case. The learned counsel has, therefore, urged that it is a case of further inquiry.

5. ' In support of his plea for bail learned counsel referred to the case of Shaukat Ali Shaikh v. The State 1989 PCr.LJ 1941, where bail was granted to an accused taking into consideration delay of 27 hours apart from the fact that the eye-witnesses were stock witnesses, medical certificate did not show any marks of violence and penetration of ejaculation was found outside. This case is distinguishable.

6. ' The learned counsel also relied upon Muhammad Tariq v. The State 1987 PCr.LJ 1846, where bail was granted to an accused when there was delay of more than 2 days in lodging of the F.I.R. And motive appeared to be put pressure on accused party for making concession to the uncle of victim who was accused in murder case of brother of accused. This case also is on different footing.

7. ' The next case relied upon by the learned counsel is Muhammad Arshad v. The State 1989 PCr.LJ 1398 where bail was granted to an accused who produced Nikahnama with abductee and signatures of the alleged abductee were compared with the signatures on the Nikahnama. It also does not appear to be relevant as in this case Nikahnama is shown to be signed in English whereas no admitted signature of Mst. Mubeena has been placed on record so that the same could be compared. Moreover the Nikahnama produced on record does not show the name of the Ward, Town, Union, Tehsil, Thana or District, where. Nikahnama was performed. Columns Nos.7 and 8 of the Nikahnama regarding Vakeel on behalf of bride and the witnesses regarding such appointment are also blank. The learned trial Court in order to ascertain the genuineness of the said Nikahnama had called a report from Taluka Municipal Officer, Sukkur who reported that said Nikahnama was not registered in Taluka Council and was registered in Union Council on 25-2-2002 i,e, much after the registration of the F.I.R. The learned counsel has also placed reliance on the case of Ateeq Ahmed and others v. The State 1994 PCr.LJ 2217 where bail was granted on the basis of a Nikahnama in which alleged abductee had admitted her signatures on the Nikahnama though acclaiming misrepresentation in that respect. In this case the alleged abductee Mst. Mubeena in her statement under section 164, Cr.P.C. Has stated that she had never seen the accused at any previous occasion who abducted her in the Rickshaw. Such statement amounts denial of Nikah.

8. ' Mr. G.D. Shahani, learned Additional Advocate-General has opposed to the grant of bail and argued that the delay in such cases is immaterial and there is sufficient material available on record to connect the applicant with the commission of offence. He has further argued that it is a day time incident. Name of the applicant appears in the F.I.R. And he has been fully implicated by Mst. Mubeena in her statement recorded before a Magistrate on 17-1-2002.

9. ' I have given due consideration to the contentions of the learned, counsel for the applicant and the learned Additional Advocate-General. I have also considered the case-law as discussed above.

10. ' I find that as result of tentative assessment of the material available on record there are no reasonable grounds to believe that the applicant/accused has not committed the alleged offence; hence no case for grant of bail is made out. Bail application is accordingly rejected.