ALLAH YAR vs STATE
This matter arises from a petition seeking pre-arrest bail in case FIR No. 470 dated 27.7.2007, registered under Section 365-B of the Pakistan Penal Code 1860 at Police Station Saddar Samundri District Faisalabad, involving allegations of abduction and zina. The core legal question is whether the petitioner is entitled to pre-arrest bail where the alleged abductee contracted a marriage with him while her previous marriage allegedly subsisted without a valid divorce. The Lahore High Court held that since the earlier marriage prima facie subsisted and no record of divorce existed in the Union Council, and considering that a subsequent nikah during the subsistence of a prior marriage is not valid in Islam, the case for pre-arrest bail is not made out. The court laid down the principle that pre-arrest bail will be denied where prima facie evidence shows a subsisting earlier marriage and the absence of a legal divorce, rendering the subsequent marriage questionable.
- Whether pre-arrest bail can be granted when the alleged abductee contracted marriage with the petitioner while her previous marriage allegedly subsisted?
- Is a subsequent marriage contracted without a divorce from the first marriage considered valid for granting bail?
- Section 365-B, Pakistan Penal Code 1860
ORDER
Petitioner seeks pre-arrest bail in case FIR No, 470 dated 27.7.2007, registered under Section 365-B, PPC at Police Station Saddar Samundri District Faisalabad.
2. Precise allegations against the petitioner are that he had abducted Mst. Sahiban Bibi alias Suriyya Bibi and had subsequently committed zina with her.
3. Learned counsel for the petitioner submits that Mst. Sahiban Bibi had contracted marriage with petitioner with her free will and consent and she had also stated before this Court while appearing in Writ Petition No, 2009/2008 that no body had abducted her rather she had contracted marriage with her free will with the petitioner. He further submits that as per the statement of the abductee case of abduction is not made out against the petitioner. As far as the allegation of zina is concerned, there is no direct or indirect evidence in this regard, therefore, under the circumstances, the case of the petitioner is that of further inquiry.
4. Learned counsel for the complainant while opposing the bail applications submits that in fact Mst. Sahiban Bibi, the alleged abductee is already a married woman and she had contracted marriage with one Hamayun son of Kaka, real brother of the petitioner and no divorce was effected. He has also referred to the record of Union Council wherein there is no such evidence regarding the divorce deed meaning thereby that marriage over marriage is not valid in Islam.
5. Learned DPG also opposes the bail application and submits that Hamayun, with whom abductee had earlier contracted marriage is proclaimed offender since long and the earlier marriage subsisted between the spouses but it was subsequently that she had maneouvered a false and concocted story.
6. I have heard the learned counsel for the parties and have also perused the record. Prima facie it appears from the record that earlier marriage of the abductee Mst. Sahiban Bibi subsisted and there is no record in Union Council regarding the divorce effected between the spouses so was corroborated by the record of the Investigating Officer who is present in the Court also submits that there is nothing on record in Union Council which could establish that divorce was ever effected between the spouses. Nikah over nikah is not valid in Islam and it has been established from the record that earlier marriage of the abductee subsisted and there is no evidence which could prove that the divorce was effected.
7. Under the circumstances, I am not inclined to confirm ad-interim pre-arrest bail already granted to the petitioner at this stage. The petition has no merit and the same is hereby dismissed.