ZAFAR ULLAH vs THE STATE
This matter arises from a bail petition filed by the petitioner, Zafar Ullah, seeking post-arrest bail in F.I.R. No. 748 of 2004 registered under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Lundianwala, District Faisalabad, on allegations of abduction for zina. The core legal question revolves around whether the petitioner is entitled to post-arrest bail given the rival claims regarding a valid marriage supported by conflicting Nikahnamas. The Lahore High Court held that since the veracity of both Nikahnamas has yet to be determined by the trial court upon recording evidence and no useful purpose would be served by keeping the accused behind bars, the case falls within the scope of further inquiry under the law. Consequently, the court allowed the bail application subject to the furnishing of appropriate bail bonds, laying down the principle that where conflicting claims of marriage and competing Nikahnamas present a matter for trial court adjudication, the accused is entitled to the concession of bail pending trial.
- Whether an accused is entitled to post-arrest bail when there are conflicting claims of marriage supported by competing Nikahnamas?
- Does the determination of the veracity of rival Nikahnamas fall within the domain of the trial court during the recording of evidence?
- Is a case considered to be one of further inquiry under criminal jurisprudence when the essential facts regarding the marital status of the abductee require judicial determination at trial?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
1. ' A case was registered against the petitioner vide F.I.R. No,748 of 2004, dated 20-8-2004 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Lundianwala, District Faisalabad. It is stated therein that the complainant gave the hand of her daughter Shamaila to one Rashid about 1-1/2 years ago. No child was born out of the wedlock. She had come to see him (her father) about one month ago. The accused Zafar Ullah developed illicit relationships with his daughter, for this reason he prohibited the accused from visiting his house.
2. On 25-7-2004 he went to sleep along with my family members. In the morning Mst. Shamaila (his daughter) was found missing. He was informed by Munawar Ahmad, Muhammad Razaq etc. That she was seen boarding a wagon along with Zafar Ullah. She was abducted for the purpose of Zina.
3. ' It is contended by the learned counsel for the petitioner that he has married Mst. Shamaila on 14- 7-2002 and she has not been abducted by anyone. A photocopy of the Nikahnama has been referred to. Learned counsel urged that it was a case of further inquiry and the petitioner was entitled to bail.
4. ' Conversely the learned A.A.-G. Submits that Mst. Shamaila was married to one Rashid on 8-12- 2002. The Nikahnama with accused Zafar Ullah is a forged one.
2. I have gone through the F.I.R. And considered the arguments of the learned counsel for the parties. Admittedly no evidence has yet been recorded by the learned trial Court. The veracity of both the Nikahnamas is yet to be determined by the learned trial Court. It is a case of further inquiry. No useful purpose will be served by keeping the accused person behind bars. Mst.
5. Shamaila claims to be the wife of the petitioner. In view of the above this bail application is allowed subject to furnishing a bail bond in the sum of Rs,20,000 with one surety in the like amount to the satisfaction of the trial Court.