GHULAM MUHAMMAD Versus THE STATE

ORDER

1. This is an application under section 498, Cr.P.C. for grant of bail to applicant Ghulam Muhammad whose bail application was rejected by learned Sessions Judge, Mekran Division at Turbat vide order dated 16th of June, 1993.

2. Brief facts relating to filing of present petition are that an F.I.R. No.77 of 1993 was registered on 4-5-1993 by complainant Mst. Farida with Police Station Turbat with the allegations that Ghulam Muhammad accused deceitfully married her giving her impression that he had legally-contracted marriage with her although he had 4 legally-wedded wives at the time of performing of Nikah with her. It was further alleged that this fact was disclosed to her after the marriage was solemnised. She, therefore, lodged the F.I.R. and the police registered a case under section 15 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 hereinafter referred to as the "ordinance"), The police started investigation and recorded statements including P.W. Yousuf, P.W. Dur Muhammad, P.W. Nabi Bakhsh and P.W. Haji Shah Dost. All these witnesses supported the prosecution whereas P.W. Muhammad Jan Sher Muhammad, Nasratullah and Muhammad Ishaque deposed otherwise.

2. The accused was arrested and investigation started. He moved an application for bail which was rejected by learned Sessions Judge, Mekran Division at Turbat as stated hereinabove.

3. Heard Mr. Molisin Javed, Advocate or the petitioner and learned Additional Advocate-General, Balochistan Mr. IjAz Yousuf Chaudhry.

4. Mr. Mohsin urged in support of the application that prima facie the petitioner is not involved in an offence under section 15 of the Ordinance inasmuch as he had got only 3 wives prior to contracting marriage with Mst. Farida. In this respect he referred to the statement of Muhammad Jan that accused had divorced his first wife Mst. Dur Bibi. Remaining witnesses Sher Muhammad, Nasratullah and Muhammad Ishaque deposed with the same effect. Besides this Mst. Dur Bibi the divorced wife of accused has filed an affidavit attested by the Assistant Commissioner that she remained wife of GhuIam Muhammad for about 20 years but she was divorced by him about 1-1/2 years prior to making of affidavit.

5. Besides the aforementioned contention Mr. Molisin Javed submitted that fifth Nikah according to Mulla becomes irregular and not void. If during consummation of such Nikah a child is born out of the wedlock he would be a legitimate child.

6. On the contrary learned Additional A.-G. vehemently opposed granting of bail to the accused. According to him this Nikah was Fasid and Batil because no Muslim is allowed to contract a fifth marriage in presence of 4 legally-wedded wives. He relied on (i) Fatawa-e-Alamgiri Volume II, page 145, Chapter Vill, (H) Durr-ul-Mukhtar translated in English by B. M. Dayal (page 29), (iii) Fatawa-e-Darul Uloom Daubundi, written by Moulana Muhammad Shafi page 013 and 515, (iv) Ain-ul-Hidaya, page 26 translated by Al-Syed Amir Ali and (v) Katub-ul-Nikah by Moulana Shah Ahmad Raza Bralvi~ page 118.

7. From reading of the aforementioned treatises learned Additional A.-G. submitted that Nikah by Ghulam Muhammad accused with Mst. Farida was void and he in a deceitful manner made Mst. Farida to believe that she is legally-wedded, knowingly that he could not contract marriage with her as he was already having 4 legally wedded wives.

8. Besides this learned Additional A.-G. referred to section 15 of the Ordinance which prescribes a punishment of R.I. for a term ' which may extend to 25 years and with whipping not exceeding 30 stripes if a man by deceitful means causes any woman who is not lawfully married to him to believe that she was lawfully married with him and cohabit with her in that belief.

9. Besides the arguments so advanced by the counsel and learned Additional A.-G. my attention was drawn to a plaint filed by Mst. Farida before Oazi Turbat for dissolution of marriage.

10. I have given my anxious consideration to the arguments so advanced It is well settled that at the stage of bail when the trial is yet to commence it would not be proper to determine intricate legal questions which would have direct bearing on the merit of the trial. The arguments advanced in the present case required authoritative determination which is not possible at this bail stage. Simultaneously in order to reach conclusion whether to grant or refuse bail to accused persons the Courts always summarily assess the material so collected by the prosecution in order to find out whether an accused person is implicated prima facie with the commission of an offence punishable with death or imprisonment for life. Therefore it would be relevant -to have a cursory view on the material brought on record.

11. The allegations in the F.I.R. are to the effect that accused deceived the complainant Mst. Farida by believing her that she was the legally-wedded wife and married her knowing full well that he could not contact this marriage as he. had already four wives. The cohabitation with Mst. Farida by Ghulam Muhammad becomes an offence within the purview of section 1-5 of Ordinance only if it is prima facie proved that her marriage with accused Ghulam Muhammad was not a valid marriage. As stated hereinabove prosecution version is that Mst. Dur Bibi and 3 other wives of Ghularn Muhammad are still legally-wedded wives of the accused therefore, his marriage with Mst. Farida was unlawful or invalid or Fasid etc. But Mst. Dur Bibi herself filed an affidavit attested by Assistant Commissioner to the effect that she has been divorced by Ghulam Muhammad some 1-1/2 years before which means that when marriage of Mst. Farida was solemnised she was no more wife of Ghulam Muhamnmad. In support of this Muhammad Jan and Sher Muhammad have been examined. Thus prima facie it is a case of further inquiry because keeping in view the affidavit of first wife of accused prosecution has to bring on record evidence that case of petitioner falls within the mischief of section 15 of the Ordinance.

12. Additionally Mst. Farida filed a suit for dissolution of marriage on the same ground before Qazi Turbat but then withdrew it hence the question whether marriage with her by accused Ghulam Muhammad was valid or not remained unresolved.

13. In view of aforementioned discussion I am inclined to hold that petitioner has made out a case for bail. As such he shall be released on bill provided he furnishes, surety in the sum of Rs,50,000 (Rupees fifty thousand) with two sureties of Rs.25,000 (Rupees twenty-rive thousand) each and P.R. of like amount to the satisfaction of District Magistrate, Turbat. He shall be so released if not required in any other case.

14. N.H.Q./456/Q Bail allowed.