FARZANA NAHEED and others vs THE STATE
The petitioners, husband and wife, sought leave to appeal against the order of the Lahore High Court declining them post-arrest bail in a case registered under sections 10/16 of the Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question concerned the entitlement of the accused to bail where the marriage of the female petitioner was disputed through a civil suit for jactitation of marriage and the criminal proceedings had been stayed sine die pending that civil outcome. The Supreme Court converted the petition into an appeal and allowed it, holding that prima facie the case did not clearly attract penal liability given that the petitioners claimed to be living as husband and wife and the complainant had not substantiated his claim with a Nikahnama, coupled with the fact that the trial was stalled indefinitely. The key principle laid down is that post-arrest bail may be granted when the foundational matrimonial status is sub judice in a civil court and the criminal trial cannot commence or conclude within a reasonable time, leaving the accused's culpability open to further inquiry.
- Are accused persons entitled to post-arrest bail when the criminal trial has been stayed sine die pending the outcome of a civil suit for jactitation of marriage?
- Does a prima facie case for bail exist under the Zina (Enforcement of Hudood) Ordinance, 1979 when the complainant fails to substantiate a claimed marriage with a Nikahnama and the accused claim to be lawfully married?
- Should bail be granted when the trial is not likely to conclude within a reasonable time and the accused have been in confinement for a substantial period?
- Section 10, Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Zina (Enforcement of Hudood) Ordinance 1979
ORDER
' KARAMAT NAZIR BHANDARI, J.--- Petitioners, husband and wife, seek leave to appeal from the order of the Lahore High Court, dated 19-10-2005 passed in Criminal Miscellaneous No,705/B of 2005 declining bail to the petitioners.
2. The two petitioners are accused of an offence under sections 10/16, Zina (Enforcement of Hudood) Ordinance, 1979 arising out of F.I.R. No,218 of 2004, dated 24-3-2004 registered at Police Station Sadar, District Jhang. It is alleged by Zafar Abbas the complainant that petitioner No,1 (Mst.
Farzana Naheed) was married to him, she was divorced upon which she married one Iqrar Hussain on 13-12-1998. It is asserted that after having her marriage with Iqrar Hussain dissolved through Court the said Farzana married again and started living with the complainant. She thereafter developed illicit relations with Khalid Mahmood petitioner No,2 to whom she claims to have married herself on 1-9-2004. We are informed that the petitioners have been arrested and are in confinement since April, 2005. We are also informed that the trial has not commenced and it seems it is not likely to conclude within a reasonable time. We are also informed that petitioner No,1 has filed a suit for jactitation and the proceeding in the criminal case has been stayed to await the decision in the suit.
3. The complainant although claims second marriage with the petitioner No,1 on 16-8-2002 but has not attached any Nikahnama to substantiate the claim. It is very rare that a divorced woman is retaken in marriage. Prima facie it does not seem to be a case where the petitioners' relationship can be said to be violative of any penal law as they claim to be living as husband and wife. The trial has been adjourned sine die to await the decision of the suit.
' In the circumstances, this petition is converted into appeal and the same is allowed. Petitioners are directed to be released on bail subject to their furnishing bonds in the sum of Rs,25,000 each with one surety each in the like amount, to the satisfaction of trial Court.