Ghulam Abbas And Another vs The State
This criminal bail application arises from a matter where the complainant Abdul Shakoor alleged that the applicants, Ghulam Abbas and others, forcibly kidnapped his minor son and wife, Bashiran, and stole valuables, leading to the registration of an F.I.R. However, investigation revealed that the kidnapping and robbery allegations were unsubstantiated, and instead, the challan was submitted under Section 10(2) read with Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, on the premise that Bashiran and Ghulam Abbas contracted a marriage while her earlier marriage subsisted. The core legal question concerns whether the applicants are entitled to post-arrest bail when the foundational dispute centers on the validity of a divorce (Talaqnama) executed prior to the subsequent marriage. The Sindh High Court held that since initial allegations in the F.I.R. were found incorrect and the controversy regarding the disputed divorce document requires trial evidence, the applicants make out a case for bail. The court granted post-arrest bail subject to surety.
- Are accused persons entitled to post-arrest bail when major allegations in the FIR regarding kidnapping and robbery are not substantiated during investigation?
- Whether the validity of a disputed divorce document can be resolved at the bail stage or requires recording of evidence during trial?
- Does a marriage contracted after an alleged pronouncement of Talaq warrant the grant of bail under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudogo) Ordinance 1979
ORDER
1. M. SADIQ LEGHARI, J. - On 11.4.2002 Abdul ( Shakoor gave application to T.P.O. Gadap alleging therein f substantially that Ghulam Abbas and seven other persons, out of whom four nominated by him, came in a Suzuki Pick up and forcibly kidnapped his minor son Aslam, wife Bashiran and also took away valuables including jewelleries. The application was converted into F.I.R. On 13.4.2002, where after the investigation was started.
2. The investigation reveals that the allegation about the kidnapping, abduction and robbery were not substantiated. However, the Investigation Officer reached the conclusion that Bashiran had been taken away by Ghulam Abbas and they had illegally performed Nikah during subsistence of earlier Nikah with Complainant Abdul Shakoor, therefore, the challan was submitted under Section 10(2) read with 16, Offence of Zina (Enforcement of Hudood) (Ordinance, 1979.
3. The bail plea of the applicant could not succeed before the learned Trial Court and was turned down by order dated 8.2.2003. After that the present application has been filed. The main argument on behalf of the applicant is that Abdul Shakoor, who was husband of Bashiran, had divorced her on 12.6.2001 by executing written document in presence of two witnesses. It has been contended on behalf of the applicant that although Abdul Shakoor, the Complainant, disputed the pronouncement of Talaq but the controversy is to be resolved in the result of trial on the basis of evidence and for the present the applicant deserve concession of bail in support of the contention.
4. Reliance has been placed on the pronouncement of the Honourable apex Court reported in Muhammad Sarwar and another v. The State (1988 PSC 498).
5. Learned State counsel has opposed the bail plea saying that in fact the disputed Talaqnama appears to be a made up document as the evidence collected by the Investigating Officer has proved that it was Bashiran who purchased the stamp paper upon which the so-called Talaqnama is written.
6. Since the applicants have married inter se and they plead that much before their Nikahnama Abdul Shakoor pronounced Talak to Bashiran and executed documents the controversy is to be decided in the result of the "trial. For the present, in view of the fact that some of the allegations levelled by Abdul Shakoor in F.I.R. Were not found to be correct. The applicants deserve the concession of bail in the light of pronouncement referred to above. They shall be released on furnishing surety in the sum of Rs. 1,00,000/- each and P.R. Bond in the like amount to the satisfaction of the Trial Court.