KHADIM HUSSAIN Versus THE STATE
The petitioners sought confirmation of their ad interim pre-arrest bail in a case registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, arising from an F.I.R. alleging abduction and illicit relations during a subsisting marriage. The core legal question was whether the petitioners made out a case for pre-arrest bail where a disputed Nikahnama and claim of valid marriage and divorce existed, and allegations required further inquiry. The Lahore High Court held that since the petitioners had joined the investigation and presented a Nikahnama indicating marriage after divorce from the former husband—with no evidence of Zina apart from the disputed union—the allegations required further probe, making it a fit case for relief. The court confirmed the ad interim pre-arrest bail, laying down the principle that where criminal allegations require further inquiry and are countered by prima facie documentary evidence of a lawful marriage, pre-arrest bail should be confirmed.
- Whether pre-arrest bail can be confirmed when the allegations in the F.I.R. require further probe and inquiry?
- Does the presentation of a Nikahnama and a claim of valid marriage constitute grounds for confirming pre-arrest bail in an offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979?
- What is the effect of joining the investigation on an application for pre-arrest bail?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
The petitioners seek confirmation of their ad interim pre‑arrest bail in case F.I.R. No.28 registered at Police Station, Ahmed Yar, District Pakpattan Sharif on 19‑3‑2002 for an offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. According to the F.I.R. Mst. Meraj Bibi petitioner was married with one Muhammad Riaz son of Niaz and during the persistence of marriage Khadim Hussain petitioner developed relationship with Mst. Meraj Bibi. It is further stated in the F.I.R. that subsequently, Khadim Hussain abducted Mst. Meraj Bibi and she was seen in the company of the accused by the P.Ws.
3. I have heard the learned counsel for the parties and have also, perused the record. It has been admitted that the petitioners have joined the investigation. The petitioner Khadim Hussain and Mst. Meraj Bibi claim to be husband and wife while Shahid accused is younger brother of Khadim Hussain petitioner. The claim of the petitioners is based on Nikahnama according to which Khadim Hussain and Mst. Meraj Bibi married each other after obtaining divorce from ex‑husband Muhammad Riaz. The allegations as levelled in the F.I.R. need further probe and inquiry. Except for the admission of Nikah of the petitioners Khadim Hussain and Mst. Meraj Bibi there is no evidence available, on record to show that the petitioners were committing Zina.
4. For what has been discussed above I am inclined to confirm the ad interim bail already granted to the petitioners subject to their furnishing fresh bail Bonds, in the sum of Rs.50,000 (Rupees fifty thousand only), each with one surety each in the like amount to the, satisfaction of the learned trial Court.
H.B.T./K‑258/L Ad interim pre‑arrest bail confirmed.