2026 P Cr. L J 602

 2026 P Cr. L J 602

[Sindh]

Before Khalid Hussain Shahani, J

AZHAR ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 358 of 2025, decided on 21st April, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 365-B---Prevention of

Trafficking in Persons Act (XXXIV of 2018), S. 3---Forcible abduction,

trafficking in persons---Bail, dismissal of---Allegation against the

accused-applicant was that he abducted the daughter of complainant

with the intent to seduce her into illicit intercourse---Record reflected

that the applicant was specifically nominated in the FIR and was

alleged to have enticed away a girl whose age, as per the ossification

report and documentary evidence, fell between 15 and 16 years---Plea

of free-will marriage raised by the accused was of no avail at this

stage as the consent of a minor was not legally valid for purposes of

marriage or departure from lawful guardianship---Furthermore, the

recovery of the girl from the custody of the accused strengthened the

prosecution's version at this stage---Medical and documentary

evidence regarding minority of the abductee shifted the case outside

the purview of further inquiry---Where the abductee is a minor, her

consent is of no legal consequence---Statements under Ss.161 or 164,

Cr.P.C., a Nikahnama, or an affidavit, howsoever voluntarily made,

cannot override the statutory protection accorded to minors, nor can

such documents be used as a defence to vitiate the allegations of

kidnapping, particularly where recovery is made from the custody of

the accused and age is medically and officially shown to be below the

legal threshold---Prima facie, the provisions of Ss.365-B, P.P.C and S.3

of the Prevention of Trafficking in Persons Act, 2018, appeared to be

attracted---Contention that the girl contracted marriage out of her

own free will may carry weight at trial, however, at this stage, her

minority made her alleged consent legally immaterial, especially

when the offence fell within the prohibitory clause---Bail application

was dismissed, in circumstances.

2022 PCr.LJ 953; PLD 1964 Dacca 225; PLD 1962 W.P. Karachi 886;

2009 MLD 1350; 1996 MLD 822; 1986 SCMR 35 and PLD 1972 Lah. 121

ref. Mahiuddin Ahmed v. Nabin Muhammad and others PLD 1964 Dacca

225; Kamala Prosad Bhartaharjee and another v. Emperor AIR 1941

Cal. 315; Abdul Hamid v. The State PLD 1962 W.P. Karachi 886; Fozia

Petrik v. The State 2009 MLD 1350; Noor Dad v. The State 1996 MLD

822; Abdul Khaliq v. The State 1986 SCMR 35; Alfat Bibi and another v.

The State PLD 1972 Lah. 121; Muhajid Khan v. The State 2021 MLD

1683 and Muhammad Azam v. Muhammad Iqbal and others PLD 1984

PLD 1984 SC 95 rel.

Muhammad Kamran Mirza for Applicant.

Ms. Rubina Qadir, DPG Duly assisted by Daniyal Muhammad

Hussain and Rana Daniyal Akram for the State.

Date of hearing: 27th March, 2025.

ORDER

KHALID HUSSAIN SHAHANI, J.---Applicant Azhar Ali seeks post-

arrest bail stemming out of FIR No. 22 of 2025, offence under section

365-B P.P.C, read with Section 3 of the Prevention of Trafficking in

Persons Act, 2018, of PS Gulshan-e-Iqbal, Karachi, The applicant s plea

for bail was declined by the learned III Additional Sessions Judge, East,

Karachi, vide order dated 31.01.2025.

2. As per prosecution theory, on 16.01.2025, Zehra Batool, the

daughter of Complainant Darya Batool left the house at 9:00 p.m. to

attend a Majlis at Imam Bargah Madina al-Ilm, Block-5, Gulshan-e-

Iqbal, Karachi, but did not return. After a futile search, the

complainant suspected their neighbor's guard, Azhar Ali, who was

allegedly seen talking to the girl, of abducting her with the intent to

seduce illicit intercourse. Consequent upon; case was registered inter

alia on above facts.

3. Learned counsel contended that the applicant has been falsely

implicated with mala fide intention and ulterior motives; that there is

one day delay in the registration of the case, despite the proximity of

the police station, which casts serious doubt on the prosecution's

version; that the abductee herself recorded statements under Sections

161 and 164 Cr.P.C. before the Investigating Officer and the learned

Judicial Magistrate respectively, categorically denying abduction and

stating that she left her home of her own volition and solemnized a

free-will marriage with the applicant at Nosheroferoze; and that

copies of the free-will affidavit and Nikahnama were submitted to

corroborate the same. It was further contended that no eye-witness

has been cited, no recovery of objectionable material has been made,

and the accused is no longer required for investigation, as he is

already in judicial custody. The learned counsel argued that the alleged abductee being lawfully married to the accused disentitles the

application of Section 365-B P.P.C. Reliance was placed on 2022 PCr.LJ

953 (Islamabad) to argue for the grant of bail in similar factual

circumstances as well as an unreported order in C.P. No. D-5865 of

2025 (Mst. Mehwish and another v. Province of Sindh and others).

4. Conversely, the learned DPG, assisted by learned counsel for the

complainant, opposed the bail plea on the grounds that the abductee is

a minor, aged between 15 to 16 years, as determined through the

ossification test conducted by the Police Surgeon and corroborated by

multiple educational records and a NADRA-issued birth certificate. It

was forcefully argued that the alleged recovery of the abductee from

the custody of the accused, coupled with her minority, renders any

consent or free-will marriage immaterial in the eyes of law. Specific

reliance was placed on PLD 1964 Dacca 225, PLD 1962 W.P. Karachi

886, 2009 MLD 1350 Quetta, 1996 MLD 822, 1986 SCMR 35, and PLD

1972 Lahore 121, to support the argument that consent of a minor is of

no legal consequence in cases of abduction or kidnapping with intent

to compel marriage or illicit intercourse. It was further submitted that

the offence falls within the prohibitory clause and is of heinous

nature.

5. Record reflects, the applicant is specifically nominated in the FIR

and is alleged to have enticed away a girl whose age, as per the

ossification report and documentary evidence, falls between 15 and 16

years. The plea of free-will marriage raised by the accused is of no

avail at this stage, in view of the settled principle that consent of a

minor is not legally valid for purposes of marriage or departure from

lawful guardianship. Furthermore, the recovery of the girl from the

custody of the accused strengthens the prosecution's version at this

stage. The medical and documentary evidence regarding minority of

the abductee shifts the case outside the purview of further inquiry.

The consistent judicial view has been that in cases of abduction or

kidnapping involving minor females, the consent of the abductee even

if expressed in statements before the Court is immaterial where she is

below the age threshold defined under Sections 361, 363, and 366 P.P.C.

The ratio decidendi laid down in numerous precedents supports the

complainant s contention that minority of the girl is the decisive

factor, and consent in such cases cannot absolve the accused of

criminal liability.

6. The case laws relied by the learned advocate for complainant is

well appreciated. As such in the case of Mahiuddin Ahmed v. Nabin

Muhammad and others (PLD 1964 Dacca 225), the Court underscored

the foundational importance of age in such prosecutions, holding that: Age of a girl in a prosecution under section 363 or section 366 of the

Pakistan Penal Code is of fundamental importance and it seems

to me that the learned Magistrate has relied on the statement

made by the girl to the effect that she is major. The learned

Magistrate ought to have made an enquiry about the age in a

case of this nature.

7. In the case of Kamala Prosad Bhartaharjee and another v.

Emperor (AIR 1941 Cal. 315), it was held that in order to prove the

charge of kidnapping, the prosecution must prove that the person

kidnapped was under 16 years of age. It is true that the burden of

proof lies on the prosecution but it is also a duty of the Magistrate to

give adequate opportunity of proving the age.

8. Similarly, in Abdul Hamid v. The State (PLD 1962 (W.P.) Karachi

886), the Court clarified the application of Sections 361 and 366 P.P.C in

the context of a minor voluntarily accompanying the accused, holding

that:

In my view, on the evidence of the girl herself, the appellant did

take her away with himself. Mst. Rubab was still under the

guardianship of her parents when she was sent to the hotel

where she met the appellant. Although the appellant did not

induce her or tell her to go with him and although the girl says

that she went with the appellant herself and that she told him to

take her away; still the appellant did take her to Korangi in

conse quence. The appellant, therefore, is liable as he took the

girl away to Korangi. It is immaterial that he did so after the girl

had requested him to do so. The offence lies in taking a minor

from lawful guardianship. It would be still an offence if a person

takes a minor at the minor's request as long as the minor is

taken while she is yet in the keeping or custody of a lawful

guardian. The nearest parallel case reported is In re, Khalandar

Saheb (AIR 1955 Andhra 59). There we find the following

remarks:-

It is next to be considered whether the accused took the minor or

enticed her to go with him. It is contended that the accused did

not take her or entice her, but she voluntarily went with him.

There is an essential distinction between the two words `take'

and `entice'. The mental attitude of the minor is not of relevance

in the case of taking. `The word `take' means to cause to go, to

escort, or to get into possession. When the accused took the

minor with him, whether she was willing or not, the fact of

taking was complete and the condition was satisfied. The word

`entice' involves an idea of inducement by exciting hope or

desire in the other. One does not entice another unless -the latter attempted to do a thing which she or he would not otherwise do.

The juxtaposition of these two words makes it clear that the act

of taking is complete (sic) when the accused takes her with him

or accompanies her in the ordinary sense of the term,

irrespective of her mental attitude. So, it is clear that, when the

accused took the girl along with him, he was `taking' her out of

the father's custody within the meaning of the section.

I am in respectful agreement with the observations made above and

I find that the appellant was rightly convicted for an offence

under section 366, P.P.C.

9. In Fozia Petrik v. The State (2009 MLD 1350), the Court reiterated

that:

Plea of accused that alleged abductee had gone with her own

consent with him, was of no consequence in view of minority of

abductee... she was minor within the meaning of S.361, P.P.C... if

any female under the age of 16 years is taken away from the

lawful guardian without consent of such guardian amounts to

kidnapping... no matter whether she has consented to such

kidnapping or not...

10. In Noor Dad v. The State (1996 MLD 822), it was held that:

Discretion of abductee to elope and her consent to a marriage with

accused and eventually to sexual intercourse might not entail

legal consequences suitable to accused... her age is only 15 years

and thus under Ordinance VII of 1979 she having not attained

the age of 16 is not an adult.

11. Similarly, in Abdul Khaliq v. The State (1986 SCMR 35), the

Supreme Court held:

...The petitioner was charged with the abduction of Shamshad

Kausar a minor girl about 12 years of age and thereafter

commission of Zina-bil Jabr with her which are punishable

under sections 11 and 10(3) of the Ordinance. The petitioner had

in reality kidnapped Mst. Shamshad Kausar from a lawful

guardianship she being a minor and was taken away to Murree

Hills. She was also subjected to Zina-bil-Jabr.

The arguments with regard to consent would not be of any avail to

the petitioner as the victim of the crime was of age specified in

the definition of "kidnapping from lawful guardianship" in

section 361, P.P.C. namely, sixteen years and the said section

according to the law is to be read for discovering the definition

of kidnapping for purpose of section 11 of the Ordinance... 12. In Alfat Bibi and another v. The State (PLD 1972 Lahore 121), the

Court opined:

...If the statement of the abductee of 15 years of age exonerating the

accused on the basis of her marriage after kidnap

ping/abduction, is allowed to be used for quashment of

prosecution under section 363/366, P.P.C. it may mean a general

license for kidnapping girls approaching their 15th year of age.

In other words, it will mean an indirect amendment in at least

half a dozen punishing provisions in the penal law of Pakistan

and also in other laws.

Even if the marriage is proved it does not absolve the so called

husband (and others) of the offence committed by him qua his

alleged wife and the marriage, for example the consent to

marriage (which may or may not be valid under Muslim law) in

these circumstances does not absolve the kidnapper of an

offence under section 363, P.P.C. The consent, as to marriage of

an abductee also, would be open to so many factual and legal

questions involving mental and physical faculties.

It is to be noticed that the consent of a minor female in matter of her

abduction is no defence in a prosecution for offence under

section 366, P.P.C.

The fact, that the alleged abductees have been allowed to go with

their abductors in collateral proceedings in the nature of habeas

corpus, cannot and does not prove that the accused persons

have not committed any offence either qua the kidnapping

and/or abduction of, and qua the marriage with, the female

minors...

13. In Mujahid Khan v. The State (2021 MLD 1683), a comprehensive

discussion of rape, kidnapping, and minority concluded with findings

based on the medical and NADRA records indicating the victim was

fourteen years old, thus rendering her consent to sexual relations and

marriage irrelevant. The Court stated:

Even otherwise the issue of consent would become marginalized if

the victim was underage reasonable grounds have been shown

linking the applicant with the cited offence/s punishable with

imprisonment of ten years or more, in respect whereof the law

disapproves of the concession of bail.

14. I would also like to concur the case of Muhammad Azam v.

Muhammad Iqbal and others (PLD 1984 SC 95) Shariat Court, wherein

the Honorable Shariat Court was pleased to held that; ...Legal implications

__Previous admissions of prosecutrix in favour

of valid marriage if proved as voluntarily made particularly

when before a Court of law but in proceedings which were

normal and genuine, held, will have important bearing

__False

evidence of previous admissions created by accused in farcical

proceedings, if proved, held further, might .be used against

accused in negation of plea of valid marriage as permissible

under S. 8, Evidence Act, 1872

__Trial Court to examine (in

circumstances of each case) as to why effort was made to

solemnise marriage in secrecy, at odd place in presence of

outsiders to exclusion of near ones particularly in cases of

"minor" girl of such' tender age that child Marriage Restraint

Act, 1929 provided as crime

__Laws on various levels of age for

marriage and exercise of option of puberty desired to be

examined by Court.

15. These judicial pronouncements collectively affirm the settled

legal principle that where the abductee is a minor, her consent is of no

legal consequence. Statements under Section 161 or 164 Cr.P.C., a

Nikahnama, or an affidavit, howsoever voluntarily made, cannot

override the statutory protection accorded to minors, nor can such

documents be used as a defence to vitiate the allegations of

kidnapping, particularly where recovery is made from the custody of

the accused and age is medically and officially shown to be below the

legal threshold. Prima facie, the provisions of Section 365-B P.P.C and

Section 3 of the Prevention of Trafficking in Persons Act, 2018 appear

to be attracted. The contention that the girl contracted marriage out of

her own free will may carry weight at trial, however, at this stage, her

minority makes her alleged consent legally immaterial in light of the

precedents cited above, especially when the offence falls within the

prohibitory clause. The unreported order relied by the learned

advocate for accused vide C.P No. D-5865 of 2024, though relevant, was

rendered in a different context involving protective relief under

constitutional jurisdiction and does not per se undermine the

implications of the penal provisions invoked in this case.

16. In view of the foregoing and keeping in mind the tentative

nature of bail proceedings, I am of the candid opinion that the

applicant has not made out a case for further inquiry as envisaged

under Section 497(2) Cr.P.C. Accordingly, the bail application stands

dismissed. However, the learned trial court is directed to conclude the

trial preferably within a span of 90 (Ninety) days. Needless to mention,

the observations made hereinabove are tentative in nature and shall

not prejudice either party during the course of trial.

JK/A-70/Sindh Application dismissed.