Mst. WALLAN alias MARIYA vs STATE
Mst. Wallan alias Mariya sought pre-arrest bail in case F.I.R. No. 45 registered at Police Station Kameer for offences under Sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and Sections 467, 468, and 471 of the Pakistan Penal Code. The core legal question was whether the petitioner was entitled to pre-arrest bail where abduction was alleged, but she contracted free-will marriage with one of the accused after a previous divorce. The Lahore High Court held that since the petitioner was a major and claimed a valid marriage supported by a divorce certificate from the Union Council, her case fell within the restrictive proviso to sub-section (1) of Section 497 of the Code of Criminal Procedure, 1898. The court confirmed the ad interim pre-arrest bail previously granted to the petitioner, noting that the allegation of abduction was belied by her own free-will marriage as a major.
- Whether pre-arrest bail can be confirmed when the allegation of abduction is belied by the petitioner contracting a free-will marriage as a major?
- Does a divorce effective through the Union Council bring a previous marriage to an end for the purpose of validating a subsequent marriage?
- Does a case fall under the proviso to sub-section (1) of Section 497 of the Code of Criminal Procedure, 1898, when the accused is a female?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 467, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
Mst. Wallan alias Mariya has sought pre-arrest bail in case F.I.R. No. 45 registered at Police Station Kameer on 11-2-2006 for offences under Sections 16/10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with offences under. Sections 467/468/471, P.P.C.
2. According to F.I.R. Mst. Wallan alias Mariya daughter of the complainant is literate lady and had passed her 8th Class Examination, Mushtaq Ahmad neighbour of the complainant called Mst.
Wallan in his house on the pretext that he would get her employed as Lady Health Worker, provided she obtained certificate from the school. When Mst. Wallan petitioner went to the school in order to obtain certificate, she was abducted by Mushtaq Ahmad and Noor Ali. After attempting in vain to get his daughter back, the complainant reported the matter to the police.
3. Learned counsel for the petitioner has submitted that the petitioner has contracted marriage with Noor Ali with her free consent and, thus, committed no offence. He has relied upon attested copy of Nikahnama Annexure "B" to the petition. Conversely, the learned counsel appearing on behalf of the complainant has vehemently opposed this application and has pointed out that in Nikahnama Annexure "B", the petitioner has shown herself to be a divorcee, while her earlier Nikah with Bashi'. Ahmad was still in existence and that during the subsistence of earlier Nikah, the later Nikah had no validity.
4. I have heard the learned counsel for the parties and have also gone through the relevant record of the case.
5. Undeniably the petitioner is a major and owns her marriage with Noor Ali, which belies the allegation of abduction levelled in the F.I.R. !The learned counsel for the petitioner has, placed on record certificate issued by Nazim, Arbitration Council, Union Council No.31, Headquarter Chak No. 114/9-L, Sahiwal, which reveals that the petitioner was earlier married with one Muhammad Ali son of Shahmand Ali, who sent notice to divorce which was by the concerned Union Council on 13-3- 2004. Thereafter, the divorce was declared to be effective. The case of the petitioner falls within the proviso to sub-section (1) of Section 497, Cr.P.C. In the above-noted circumstances, I am inclined to confirm the ad interim pre-arrest bail granted to the petitioner vide order, dated 3-3-2006 on, the same terms and conditions.
6. At this juncture, Noor Ali has put in appearance and volunteered to enhance the amount of dower from Rs.500 to Rs.5,00,000. The dower would be deferred one.
7. A copy of this order would be sent to Nikah Registrar concerned, who would enter the enhanced amount in the relevant column.