ASGHAR ALI Versus STATE

The petitioner who is involved in a case under sections 10, 11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 468, 471 and 420, P.P.C. arising out of F.I.R. No.236/93, dated 21-9-1993, registered at Police Station Pir Mahal, District Toba Tek Singh, seeks to be admitted to bail.

2. Briefly the allegation against the petitioner is that he performed Nikah ceremony between Muhammad Iqbal and Samar Iqbal principal accused.

3. The learned counsel for the petitioner contended that the allegation against the petitioner is that he performed second Nikah of Samar Iqbal with Muhammad Iqbal in the presence of her former Nikah with Tariq Mahmood, thereby he committed offences under section 420/468/471, P.P.C. read with section 10/11, Offences of Zina (Enforcement of Hudood) Ordinance VII of 1979. The learned counsel submitted that there is no allegation of Zina against the petitioner. The only allegation against him is that he being Nikah Khawan willingly and knowingly performed the second Nikah. The learned counsel submitted that section 420, P.P.C. is bail-able whereas section 468/471, P.P.C. are non-Cognizable offences, hence the police was not competent to investigate the case. He also contended that the petitioner is not named in the F.I.R. and when this Court granted bail to Muhammad Aslam and others vide Criminal Miscellaneous No.4283/B. of 1993, on 30-11-1993, the petitioner (Nikah Khawan) was not an accused at that time and he was made accused only after the decision of the aforesaid bail application because of the observations made by this Court in the aforesaid bail order, hence the case against the petitioner is one of further inquiry as it would be determined after the recording of detailed evidence whether willingly and knowingly the petitioner performed second Nikah ceremony of Muhammad Iqbal with Samar Iqbal.

3. The learned counsel for the State assisted by the Police Officer, has opposed this bail application on the ground that the petitioner committed very heinous offence by facilitating commission of Zina after performing second Nikah of Samar Iqbal with Muhammad Iqbal accused in the presence of her first marriage with Tariq Mahmood which was not dissolved in accordance with law, hence the case falls within the prohibitory clause and he is not entitled to the grant of bail.

4. I have heard the learned counsel for the parties and have perused the record.

5. Admittedly, the offences under section 468/471, P.P.C. are non -cognizable and the police is not competent to investigate these offences unless there is an order of the Magistrate and there is no order of the concerned Magistrate on the police file authorising the police to investigate such offences. The petitioner is not named in the F.I.R. and there is no direct allegation of Zina against him and the offence under section 420, P.P.C. is though cognizable but it is a bail-able offence. In the presence of the material referred to above, the case against the petitioner is one of further inquiry, hence the petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the A.C., Kamalia.

N.H.Q./M-1477/L

Bail allowed.