MUHAMMAD SHAHID Versus State
This criminal miscellaneous petition was filed by Muhammad Shahid seeking post-arrest bail in case F.I.R. No.210 registered under sections 365-B and 376(i) of the Pakistan Penal Code at Police Station Saddar, Alipur, concerning allegations of abduction and Zina-bil-Jabr resulting in pregnancy. The core legal question was whether the petitioner made out a case for further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898, given that a Family Court had previously dissolved the marriage between the petitioner and the complainant on the basis of Khula after observing that a Nikahnama existed between them. The Lahore High Court held that the dissolution of marriage on the basis of Khula indicated a prior marital relationship, rendering the allegation of Zina-bil-Jabr doubtful and bringing the case within the scope of further inquiry. The court laid down the principle that where documentation and prior judicial proceedings regarding marital status cast doubt on allegations of sexual assault, the case warrants the grant of post-arrest bail pending trial.
- Whether a prior suit for jactitation of marriage resulting in a decree of dissolution on the basis of Khula creates sufficient doubt to bring a charge of Zina-bil-Jabr within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Can post-arrest bail be granted in heinous offences like Zina-bil-Jabr when the foundational marital relationship between the accused and the complainant is a matter of record?
- What is the evidentiary value of tentative observations made by a bail-granting court regarding pending civil or family court proceedings?
- Section 365-B, Pakistan Penal Code
- Section 376(i), Pakistan Penal Code
- Section 497(2), Code of Criminal Procedure 1898
ORDER
CH. IFTIKHAR HUSSAIN, J.--- Petitioner Muhammad Shahid through the instant petition has sought for post-arrest bail in case F.I.R. No.210 registered under sections 365-B and 376 (i) P.P.C. with Police Station Saddar, Alipur on 8-6-2009.
2. Briefly the allegation against him as per the F.I.R. is that on the night between 21/22-2-2008, he and his brother Rasheed on gun point have abducted Mst. Haleema complainant and took her to Muzaffargarh and therefrom to certain other places and there he (petitioner) had committed Zina-bil-Jabr with her and as a result of the same she became pregnant and one day, she finding on opportunity had escaped and came to her parents.
3. After hearing the learned counsel for the parties and perusing the record, I find that there is an allegation against him of the abduction of the complainant along with his brother Zina-bil-Jabr with her by him and as a result of the same she became pregnant. And contrary to the same, his plea is that she is his legally wedded wife and he had not at all abducted her with anyone. His learned counsel has produced the copy of order dated 27-6-2009 recorded by Mr. Ahmad Nawaz Khan, learned Judge Family Court, Multan in her suit for jactitation of marriage against him. The finding of the learned Judge Family Court in the same is like this:---
"Copy of alleged nikahnama is available on file. I am therefore inclined to hold that the evidence tendered on behalf of the plaintiff is not sufficient to declare the impugned nikahnama as a fake and fictitious one. However, the copy of plaint affidavit on behalf of the plaintiff as well as on behalf of Haji Behram Khan P.W.2 are sufficient to pass a decree for dissolution of marriage in favour of the plaintiff on the basis of Khula. Resultantly, the marriage of the plaintiff is hereby dissolved forthwith the defendant and suit of the plaintiff is hereby decreed on the basis of Khula."
The above position shows that although she could not prove her case for jactitation of marriage against him but still the learned said Judge considering her to be his wife has dissolved their marriage on the basis of Khula and decreed her said suit.
4. The learned counsel for the complainant has submitted that the appeal against such judgment/decree is pending adjudication before the learned District Court but it is not certain that when such an appeal may be decided. However, in view of dissolution of marriage between him and the lady, on the basis of Khula, it is very much clear that there had been marriage between them although the lady has disowned such fact and she has been declared his wife. So, apparently there is no question of Zina-bil-Jabr with her by him. So, in all such circumstances, the case against him requires further inquiry into his guilt and so, the same is covered under subsection (2) of section 497, Cr.PC. He is stated to be behind the bars since 17-8-2009.
5. In these circumstances of the case, I accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.
6. However, it is hereby clarified that the above observations are, tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.
H.B.T./M-13/L Bail granted.