Muhammad Azam Vs The State etc

Form No.HCJD/C-21

ORDER SHEET

IN THE LAHORE HIGH COURT,

LAHORE

JUDICIAL DEPARTMENT

Crl. Misc. No.99700-B/2017

Muhammad Azam Versus The State, etc.

S. No. of order/ Date of order/ Order with signature of Judge, and that of parties or proceeding Proceeding counsel, where necessary.

03.04.2018 Sardar M. Abbas Wattoo, Advocate with the petitioner. Mr. Allah Ditta Ansari, Advocate for the complainant. Ms. Nuzhat Bashir, Deputy Prosecutor General with Ashfaq, ASI.

Muhammad Azam, petitioner seeks pre-arrest bail in case F.I.R. No.438 dated 07.05.2017, for offence under Sections 365-B & 376 of Pakistan Penal Code, 1860, registered at Police Station A-Division, Okara.

2.Briefly, the allegation against the petitioner is that he along with co-accused persons abducted the minor daughter of the complainant namely Mst. Atia Bibi from the gate of her School.

3.Heard. Record perused.

4.As per prosecution’s case the petitioner abducted Mst. Atia Bibi on 07.05.2017 but according to the Marriage Registration Certificate of the petitioner with Mst. Atia Bibi, registered on 04.05.2017 and issued on 07.10.2017, both married each other on 04.05.2017. Mst. Atia Bibi also filed a private complaint on 08.05.2017 against the complainant and others and got recorded her statement to the effect that she married the petitioner on 04.05.2017 in accordance with law and injunctions of Shariah. The petitioner filed a habeas petition on

22.05.2017 for the recovery of Atia Bibi from the alleged illegal and unlawful custody of the complainant and others while Mst. Atia Bibi appeared before this Court on 01.06.2017 and made a statement before this Court that reads as under:

“Mst. Atia Bibi, present in Court, states that Muhammad Azam, petitioner is her husband but she desires to accompany with her parents from where she has come to the Court today.

2.At this juncture, learned counsel for the petitioner does not press this petition.

3.Disposed of, accordingly. The security amount of Rs.5,000/- be returned to the petitioner.”

Even as per result of investigation Atia Bibi was never abducted by the petitioner and she accompanied him on her own and married him with her freewill and consent. Police investigation does not support the story narrated by the complainant in the crime report. As per report of the District Standing Medical Board constituted under the orders of this Court, though, age of Mst. Atia Bibi on 09.12.2017 when examined was 14.5 to 15.5 years and being so, at the time of her Nikah with the present petitioner she was not 16 years of age yet the Board also declared that exact age cannot be determined. There is no cavil about the proposition that Nikah of girl under the age of sixteen years is violative of Child Marriage Restraint Act, 1929 but in the light of dictum laid down by this Court in the case reported as Allah Nawaz v. Station House Officer, Police Station Mahmood Kot District, Muzaffargarh (PLD 2013 Lahore 243), Mst. Atia Bibi, a Muslim girl below sixteen years of age who has otherwise attained puberty and was a consenting party to the marriage, her marriage with the petitioner though, is prima facie, an offence under Child Marriage Restraint Act, 1929 carrying maximum sentence of

imprisonment exceeding upto six months yet, the same cannot be termed as invalid marriage. Moreover, it is yet to be determined by the learned trial court that whether the actual age of Atia Bibi, the alleged abductee was disclosed by her to the petitioner when he entered into Nikah with her as according to the relevant column of Nikah Nama she was 18 years old. The ex parte judgment and decree of jactitation of marriage dated 07.07.2017 has already been challenged by the present petitioner through application under Section 12 (2) C.P.C and the learned Family Court vide order dated 27.09.2017 has suspended the judgment and decree. Report under Section 173 Cr.P.C in this case stands sent to the learned trial court and in view of circumstances mentioned supra, question of culpability of the petitioner under Sections 365-B & 376 P.P.C requires determination by the learned trial court after recording of evidence that makes the case of the present petitioner one of further inquiry into his guilt and possibility of his false implication due to the mala fide on the part of the complainant because of petitioner’s marriage with his daughter against his wishes and consent, also cannot be ruled out. Hence, this petition is accepted and pre-arrest bail already granted to the petitioner vide order dated 02.11.2017 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.100,000/-, with two sureties each in the like amount, to the satisfaction of the learned trial court.

(Syed Shahbaz Ali Rizvi) Judge Approved for reporting

Judge *Mukhtar*