ABDUL HAMEED Versus THE STATE

ORDER

Petitioner, Abdul Hameed, who claims to have married Mst. Shamim Mai daughter of Muhammad Iqbal on 23‑1‑1986, has been arrested for offences under sections 16 and 10(2) of Zina (Enforcement of Hudood) Ordinance VII of 1979 on the basis of F.I.R. No. 78/86 got recorded on 31‑8‑1986 .at Police Station Abbas Nagar by one Muhammad. Siddique, who himself is facing trial under the same sections regarding' the same‑lady in a case got registered by Muhammad Iqbal the father of the alleged abductee Mst. Shamim Mai, who has also filed a suit for jactitation of marriage against the said Muhammad Siddique which is still pending in the Family Court at Bahawalpur.

2. The petitioner's plea for grant of post‑arrest bail has been declined by a learned Additional Sessions Judge by his order, dated 27‑11‑1986, despite the submission made before him that the petitioner had no knowledge that Mst. Shamim Mai may have already been married to some one else.

3. Learned counsel for the State and the complainant, have also been heard.

4. In addition to a copy of the Nikahnama relating to the petitioner's marriage with Mst . Shamim Mai, this petition is supported by the affidavits furnished by Mst. Shamim Mai herself, her father Muhammad Iqbal and her mother Mst. Bakhto Mai to support her marriage with the petitioner.

5. Apart from the fact that validity of the alleged marriage of Mst. Shamim Mai with 'the complainant Muhammad Siddique is sub judice and will be adjudicated upon in due course so that, at present, it may not be accepted at its face value, this becomes a case of further inquiry for the reason of her marriage with the petitioner, supported by the Nikahnama and the aforementioned affidavits so has been held also in Muhammad Habibullah and another v. The State 1986 P Cr. L J 95, the facts whereof bear remarkable similarity to those of this case.

6. Moreover, there do not appear reasonable grounds for believing that the petitioner may have been guilty of the commission of the said offences because, on account of the petitioner's marriage performed with Mst. Shamim Mai much before the registration of this case against him, section 16 of the Ordinance would not in terms, apply for the reason that the intent regarding illicit intercourse would be missing. Similarly, the requirement of subsection (2) of section 10 ibid would not be possible to be fulfilled on account of the petitioner's intercourse with Mst. Shamim Mai not falling within the definition of Zina contained in section 4 thereof.

7. In the circumstances, petitioner Abdul Hameed is granted bail, in the sum of Rs.10,000 (Rupees ten thousand) only with one surety in the like amount to the satisfaction of Assistant Commissioner/Duty) Magistrate, Bahawalpur.

S.A./A‑245/L Bail granted.