NASIR GUL alias NASIR MUHAMMAD & another vs STATE and another
This is a bail application filed by the accused petitioners, Nasir Gul and Muhammad Rafique, seeking pre-trial release in a criminal case registered under Sections 5/10(2)/19(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Sections 376/365-B/454 of the Pakistan Penal Code 1860. The core legal question revolved around whether the case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 due to conflicting claims of marriage and the absence of a verified Nikahnama by the complainant. The Peshawar High Court held that where the alleged victim contracted a marriage of her own choice after attaining puberty and the complainant failed to establish a valid prior Nikah, the matter requires further inquiry into the guilt of the accused. The court laid down the principle that mere abscondence, being corroborative in nature, cannot deny bail to an accused whose case otherwise falls under the purview of further inquiry, and that a major woman has the right to contract a marriage of her own choice in the absence of a subsisting registered Nikah.
- Does a dispute regarding multiple claims of Nikah bring a case within the scope of further inquiry for the purpose of bail?
- Can mere abscondence serve as a bar to the grant of bail when the accused's case otherwise falls under further inquiry?
- Does a major woman have the right to contract a marriage of her own choice in the absence of a proven prior Nikahnama?
- Does delay in lodging the FIR, when inadequately explained, weaken the prosecution's case at the bail stage?
- Section 5, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 19(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 376, Pakistan Penal Code 1860
- Section 365-B, Pakistan Penal Code 1860
- Section 454, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
Nasir Gul and Muhammad Rafique, accused/petitioners has filed this application for their release on bail in case FIR No, 395 dated 16.11.2006 under Sections 5/10(2)/19(2) of the Offence of Zina, (Enforcement of Hudood) Ordinance, 1979 and Sections 376/365-B/454 PPC of Police Station Tajori, Tehsil and District Lakki Marwat.
2. The allegations against the accused/petitioners as per FIR are that they had abducted Mst. Sad Bibi for Zina in active connivance of their co-accused Muhammad Shafique.
3. Learned counsel for the accused/petitioners argued that 'as per statement of Mst. Sad Bibi, she being of the age of twenty years, had left her house with accused/petitioner Muhammad Rafique, whereafter she married him. He pointed out that in the affidavit dated 15.11.2001, the same statement has been given. He further argued that the complainant is not the husband of the lady and no Nikah has been proved on his part with Mst. Sad Bibi. He next urgued that Mst. Sad Bibi has entered in Nikah with accused/petitioner Muhammad Rafique and she has two children. He submitted that the petitioner Nasir Gul at the time of occurrence was 13/14 years of age and being minor, he had committed no offence in the eyes of law. Moreover, the accused/petitioners are brothers and it is not possible for them to abduct a lady for commission of Zina.
4. On the other hand, learned counsel for the complainant argued that Mst. Sad Bibi is the legally wedded wife of the complainant and the subsequent Nikah, if any, has no legal value and due to the second Nikah, the accused/petitioner Muhammad Rafique is guilty of commission of continuous Zina.
5. I have carefully gone through the record of the case and considered the submissions of the learned counsel for the parties.
6. The first fact to be pointed out is the time of lodging the FIR. The occurrence has allegedly taken place at 2100 hours while its report was lodged at 0920 hours and this delay has not been properly explained by the complainant. The reason given for this delay is non-availability of transport which is not convincing in view of the distance of place of occurrence and the police station which is about 14/15 kilometers. Further more, no Nikahnama has been produced by the complainant in support of his marriage with Mst. Sad Bibi. The marriage, if any, with the complainant also becomes doubtful keeping in view the age of the lady. According to the police record and statement of Mst.
Sad Bibi before the police, she was engaged with accused/petitioner Muhammad Rafique in her child-hood but when she got puberty, her parents wanted to marry her with the complainant and, therefore, she left the house of her parents and went to the house of accused/petitioner Muhammad Rafique and thereafter married him. So this statement means that the earlier affairs between the complainant and Mst. Sad Bibi was mere engagement and not Nikah. This is supported by the fact that no Nikahnama has been produced by the complainant in support of his marriage with M,st. Sad Bibi. The affidavits available on file also supports the plea that Muhammad R,afique petitioner has entered into Nikah with the lady and has got two children. In absence of Nikahnarna, a lady who is major has the right to enter into Nikah of her own choice.
7. In a similar case where there was a dispute regarding two Nikahs with two different persons, the Honorable Lahore High Court has held that when there are two claimants of a woman to be their wife, then it becomes a case of further inquiry. This case is reported in 2005 PCr.LJ 340, wherein it has been held as under:-- "In the case of co-accused Rehana alias Shama, this Court has observed that it is a case of two Nikahnamas and the question that which of these is correct seriously needs consideration. The benefit of such observation is equally available to him and from the angle his case is covered under sub-section (2) of Section 497 Cr.P.C. calling for further inquiry into his guilt".
8. Here in this case also, two Nikahs are disputed due to which the case of the accused/petitioners becomes that of further inquiry and arguable for the purposes of bail.
9. The only material against the accused/petitioners is their alleged abscondence which is only corroborative in nature and could not be made hurdle in their way to avail bail, when otherwise their case falls within the ambit of further inquiry. In this connection, I may rely on 2007 P.Cr.LJ 1715.
10. In view of the above facts and circumstance of the case, this application is allowed and the accused/petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs, One lac with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.