MUHAMMAD HAYAT Versus STATE

ORDER

1. JAVID IQBAL, J.-- After hearing learned counsel for the petitioners Muhammad Hayat and Mst. Sultana, as well as the State, we convert this petition into appeal and proceed to dispose it of as such.

2. The appellants Muhammad Hayat and Mst. Sultana are involved in a case under section 11 of the Hudood Ordinance VII of 1979 which has been registered against them on 11 September 1986. It is stated in the FIR that Muhammad Hayat appellant had forcibly abducted Mst. Sultana appellant and subsequently the abductee was not restored to her husband. Both the appellants were allowed bail by the Sessions Judge, Sargodha but subsequently the Lahore High Court, Lahore vide its order dated 14th March, 1987 cancelled their bail. As a result both of them were sent to jail. They again moved an application for bail which was dismissed by the Sessions Judge Sargodha. Thereafter the appellants moved for their bail before the Lahore High Court, Lahore but learned Single Judge of that Court vide his order dated 4th July, 1987 dismissed their application.

2. It is contended by the learned counsel on their behalf that the husband of Mst. Sultana appellant namely Ghulam Abbas had divorced her on 4th October, 1985 and that thereafter she had voluntarily entered into Nikah with Muhammad Hayat appellant on 20th July, 1986. However the case was registered against the appellant on 11th September, 1986. Learned counsel also submitted that the divorce was pronounced by the arbitration council and since it had been admitted, Mst. Sultana appellant was entitled to enter into second marriage. It was also submitted that sworn statements of the witnesses mentioned in the FIR that they had not seen the occurrence were attached in order to show that the case was false and that both the appellants had been apprehended in the house of Muhammad Hayat appellant as they were residing there as husband and wife. Learned counsel for the State on the other hand argued that the divorce-deed had been prepared falsely. The Chairman of the Union Council did not issue any certificate of divorce and that by obtaining affidavits of the eye-witnesses including mother of Mst. Sultana appellant, the appellants had tried to tamper with the record.

3. In our view prima facie there is no tampering of the record if the appellants while they were admitted to bail had obtained affidavits of the eye-witnesses etc. not supporting the prosecution version for those witnesses whose affidavits had been taken had not come forward to state that these had been obtained through coercion. Even otherwise the matter as to whether Mst. Sultana appellant had been divorced by Ghulam Abbas (her former husband) or not can only be determined by a Family Court Judge.

4. Since this is the position the appellants Muhammad Hayat and Mst. Sultana are admitted to bail subject to their furnishing security in the sum of Rs.20,000 (Rupees twenty thousand only) each with one surety each in the like amount to the satisfaction of the Assistant Commissioner Sargodha, and the appeal is allowed.

5. M.I./M-301/S. Appeal allowed.