MUHAMMAD IBRAHIM Versus THE STATE
This petition for post-arrest bail was filed by an accused charged under Sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, read with Sections 420, 468, and 471 of the Pakistan Penal Code 1860. The prosecution alleged that the petitioner witnessed an invalid Nikah between a married woman and a co-accused. The petitioner contended that he had no involvement in the enticement or commission of Zina, and that the woman had filed a suit for jactitation of marriage against the complainant, which was pending before a competent Family Court. The police report under Section 173 of the Code of Criminal Procedure 1898 confirmed that the petitioner's only role was witnessing the Nikah. The High Court held that since the subsistence of the woman's marriage with the complainant was sub judice before the Family Court, the petitioner's guilt was a matter of further inquiry. Consequently, the Court granted post-arrest bail under Section 497(2) of the Code of Criminal Procedure 1898.
- Whether an accused who merely witnessed a Nikah can be denied bail when there is no evidence of enticement or Zina against him?
- Does the pendency of a suit for jactitation of marriage before a Family Court render the criminal charge of an invalid marriage a matter of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can post-arrest bail be granted where the police investigation report under Section 173 of the Code of Criminal Procedure 1898 exonerates the accused of active participation in the main offences of enticement and Zina?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Muhammad Ibrahim, the petitioner through the instant petition has sought for after‑arrest bail in case F.I.R. No.60, dated 17‑3‑2003 under section, 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 read with sections 420/468/471, P.P.C. registered with Police Station Sanawan District Muzaffargarh.
2. Briefly the allegation against him is that he has witnessed the Nikah solemnised between Mst. Shahnaz Mai the wife of the complainant and one Muhammad Bilal.
3. It has been contended on his behalf that he has falsely been roped in that there is absolutely no evidence against him of enticement or taking away of Mst. Shahnaz Mai or Zina with her; that she had been divorced by Ghulam Shabbir complainant and thereafter she had entered into Nikah with co‑accused Muhammad Bilal; that she had conceived from Muhammad Bilal and given birth to a child namely Muhammad Sheraz that Ghulam Shabbir complainant is still claiming her to be his wife and that is why she had filed suit for jactitation of marriage against him and the same is pending adjudication before the competent Family Court and some verdict regarding existence or otherwise of marriage with him is to be returned that in the report under section 173, Cr.P.C. prepared by the police, it has been mentioned that neither any evidence of enticement or taking away of Mst. Shahnaz Mai nor Zina with her is available against him and he simply was witness of Nikah between her and Muhammad Bilal and hence the case against him certainly needs further inquiry into his guilt; and that he is behind the bars non‑convict.
4. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he has helped his co‑accused Muhammad Bilal in the enticement of Mst. Shahnaz Mai, the wife of the complainant and then became witness to the Nikah between them which is invalid in view of subsistence of her marriage with complainant Ghulam Shabbir; and that the D.S.P., Muzaffargarh in his investigation has clearly opined that he is involved in the matter.
5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
6. Learned counsel for the petitioner has shown me the copy of report under section 173, Cr.P.C. submitted in the case against him, Muhammad Bilal, Mst. Shahnaz Mai and one Naseer Ahmad. The same shows that she (Mst. Shahnaz Mai) has been arrayed as an accused in the case.
7. It has also been mentioned therein that during the investigation; it has been found that neither he has any connection with the enticement or taking away of Mst. Shahnaz Mai or of Zina with her. According to the same, he simply was witness of the Nikah of the co‑accused Muhammad Bilal with her (Shahnaz Mai). There is with the petition, the certified copy of suit for jactitation of marriage brought by her against complainant (Ghulam Shabbir) and said Muhammad Bilal. According to the same, Ghulam Shabbir (complainant) had divorced her in writing on 19‑7‑2001 and thereafter she had entered valid Nikah with Muhammad Bilal on 5‑11‑2001.
8. Admittedly, the said suit is pending adjudication before the competent Family Court. The question of subsistence or otherwise of her marriage with the complainant is still to be determined. Hence, the case against him certainly falls within the purview of further‑inquiry as envisaged by subsection (2) of section 497, Cr.P.C.
9. He is stated to be behind the bars and previous non‑convict.
10. In these circumstances, I find him entitled to bail. The petition, therefore, is accepted and he is admitted to bail provided he furnishes bail Bonds in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court.
H.B.T./M-2025/L Bail granted.