MUMTAZ HUSSAIN Versus THE STATE

ORDER

At the very outset, the learned counsel for the petitioner has requested to allow him to correct the year of registration of the case in the bail petition as 2000 instead of 2002. According to him, due to typographical mistake this was mentioned as 2002 instead of 2000. The request, therefore, has been allowed in the interest of justice. The learned counsel for the petitioner has corrected the same with his signature before this Court today.

2. Mumtaz Hussain, the petitioner through the instant petition seeks post‑arrest bail in case F.I.R. No.277, dated 6‑4‑2000 under sections 16/10, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 380 and 109, P.P.C. registered with Police Station Saddar Jhang.

3. Precisely the allegation against him as contained in the F.I.R. is that on 13‑3‑2000 at about evening time, he (petitioner), Riaz, Ijaz, Mst. Balqees and Mst. Pathani had taken away Mst. Nasreen Bibi, the wife of the complainant from his house for Zina and they while doing so had also taken away gold ornaments weighing 20 Tolas and cash Rs.50,000 therefrom.

4. It has been contended on his behalf that he has falsely been roped in as the alleged abductee Mst. Nasreen Bibi is his legally‑wedded wife and their Nikah was performed on 21‑3‑2000 and the copy of their Nikahnama is available with the instant petition; that she has brought suit for jactitation of marriage against the complainant Abdul Ghaffar and in the same he has been proceeded against ex parte and it now is fixed for 17‑10‑2003 for her ex parte evidence; that it is yet to be determined by the competent Court that if she is wife of the complainant or not; that even otherwise, it is a .case of two Nikahs and which one is correct will be gone into at trial; rthat the cancellation of this case report was prepared but unfortunately the same could not be agreed to by the learned Illaqa Magistrate; that on the submission of the challan in the case two of his co‑accused namely Ijaz and Mst. Pathani have been acquitted under section 265‑K, Cr.P.C. and such fact also suggests that the allegation levelled by complainant against them is not true; and that he is behind the bars and previous non‑convict.

5. Conversely, the learned State Counsel assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that he alongwith his co‑accused had enticed away the complainant's wife for Zina and had also taken away his gold ornaments weighing 20 Tolas and cash Rs.50,000 from his house; that Nikahnama relied upon by him is fictitious and ingenuine document and that the learned Magistrate in view of the facts and circumstances of the case did not agree to the police report of the cancellation of the case against them and all such facts tend to connect him with the crime and so is not entitled to any indulgence by this Court.

6. I have carefully considered the submissions made from both the sides with the help of available record.

7. Allegedly, he alongwith his two brothers namely Ijaz and Riaz and mother Mst. Pattani and Mst. Balqees the wife of his brother Ijaz has enticed away the said wife of the complainant for Zina.

8. It is the contention from his side that she in fact is his legally -wedded wife and in this regard has relied upon the copy of Nikahnama issued by the Registrar, Union Committee No.2 Sargodha. The same shows that their marriage was solemnized on 21‑3‑2000. It thus, was about more than 3‑1/2 years ago.

9. The complainant also alleges her to be his wife. It means that it is a case in which both the complainant and the petitioner allege her to be their wife

10. Not only this, she appears to have gone to the competent Family Court with suit for jactitation of marriage. The same has reflected from the certified copy of the plaint in her such suit annexed to the petition.

11. The question that which of two Nikahs is correct or genuine is matter, which certainly needs inquiry.

12. It can also be mentioned here that during the investigation the case was found false and report for cancellation of the same was prepares and also for the discharge of the accused but the same was not agreed to by the learned Magistrate. It has not been disputed by the State or the complainant's learned counsel that two of his co‑accused namely Ijaz and Mst. Pattani stood acquitted by the learned trial Court under section 265‑K, Cr.P.C.

13. In such circumstances, I have no hesitation in saying that his case is open to further inquiry into his guilt and the same therefore, is amply covered under subsection (2) of section 497, Cr.P.C.

14. He is behind the bars and stated to be previous non‑convict. In this view of the matter, 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.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.

H.B.T./M‑2272/L Bail allowed.