MUHAMMAD HUSSAIN vs THE STATE and another
The petitioner sought post-arrest bail in a case registered under sections 13, 14, and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The core legal question involved whether the petitioner was entitled to bail given that co-accused had already been enlarged on bail, the principal accused made no allegation of zina, and the petitioner was arrested in violation of Section 156-B of the Code of Criminal Procedure 1898 without prior permission of the Magistrate. The Lahore High Court held that the petitioner made out a case for further inquiry and parity with co-accused, especially considering the mandatory procedural violation during arrest and the ongoing dispute regarding the validity of the marriage. The Court laid down the principle that arrest without prior permission under Section 156-B, Cr.P.C., coupled with the release of co-accused and the debatable nature of the matrimonial status, entitles an accused to post-arrest bail.
- Is an accused entitled to post-arrest bail when co-accused facing similar allegations have already been granted bail?
- Does the arrest of an accused without prior permission of the Magistrate in violation of Section 156-B of the Code of Criminal Procedure 1898 form a ground for granting bail?
- Whether post-arrest bail should be granted when the question of whether the female co-accused is the legally wedded wife of the petitioner requires further inquiry after recording of evidence?
- Section 13, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979
- Section 14, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979
- Section 156-B, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD JEHANGIR ARSHAD, J.- The petitioner who is accused in case F,I.R. No, 21, dated 11-4- 2004 under sections 13, 14, 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, Police Station Shahwali, District Rajanpur, seeks post arrest bail in the said case also booked under section 10(2) of the said Ordinance yet she was allowed bail and coaccused of petitioner namely Mouj Din was also allowed bail by this Court on 29-5-2006. It is further argued that despite absence of any allegation of zina against him, the petitioner was arrested in the said case without prior permission of the concerned Court in terms of section 156-B, Cr.P.C., therefore, petitioner is entitled to grant of bail in view of the law declared by this Court in 2005 YLR 1634,
3. On the other hand, learned counsel for the complainant as well as State have opposed this petition by arguing the petitioner and Mst. Waziran committed Zina-bil-Raza knowingly that Mst.
Waziran was legally wedded wife of the complainant and that the decree for jactitation of marriage was obtained ten years after the alleged Nikah of the petitioner with said Mst. Waziran.
4. I have considered the arguments of learned for the parties and perused the record.
5. Admittedly, Mst. Waziran and Mouj Din co-accused have been released on bail. It was observed by my learned brother (Late) Nazir Ahmad Siddiqui, J. In the order dated 29-5-2006 passed in Crl.
Misc. No,l404-B/2006 that Mst. Waziran got her, statement recorded under section 161, Cr.P.C. In which she never levelled any allegation of zina against any 'person. Further Mst. Waziran is admittedly living with the petitioner as his legally wedded wife after contracting marriage since 1996 and Nikah Nama was also got registered in Union Council Tehsil Sadiqabad Deh and, the complainant never bothered to find out the whereabouts of Mst. Waziran nor made any effort for getting her recovered. Admittedly the petitioner was arrested without prior permission of the Magistrate in violation of mandatory provisions of Section 156-B, Cr.P.C. The petitioner is behind the bars since 28-7-2005 and question whether Mst. Waziran is his legally wedded wife, is .Yet to be determined after recording of evidence. This application is allowed and petitioner is allowed bail subject to his furnishing bail bqnd in the sum of Rs, 1,00,000 with one surety in the like amount to the satisfaction of learned Trial Court.