SHAH DIN AND OTHERS vs THE STATE
The petitioners sought post-arrest bail in a case involving charges under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with the Pakistan Penal Code 1860. The prosecution alleged that the petitioners abducted the complainant, a major, and subjected her to rape over a period of captivity. The petitioners contended that the FIR was delayed by fifty days, that the complainant had voluntarily entered into a Nikah with one of the petitioners, and that prosecution witnesses provided contradictory statements. The core legal question was whether the petitioners were entitled to bail given the claim of a valid marriage and the evidentiary discrepancies. The Court held that because the complainant was sui juris and the validity of the marriage remained a disputed factual issue, the case constituted one of 'further enquiry' under the law. Consequently, the Court admitted the petitioners to bail. The judgment emphasizes the sacred duty of Nikah Registrars under the Muslim Family Laws Ordinance, 1961, to verify the competency, age, and free will of parties before authenticating marriages, especially in suspicious circumstances.
- Does the production of a registered Nikahnama by an accused in an abduction and rape case constitute grounds for bail on the basis of further enquiry?
- What is the scope of the duty of a Nikah Registrar under the Muslim Family Laws Ordinance, 1961, when authenticating a marriage?
- Can bail be granted when the complainant is sui juris and the voluntariness of the marriage is a disputed question of fact?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 109, Pakistan Penal Code 1860
- Muslim Family Laws Ordinance 1961
ORDER
' The petitioners stand charged under section 10/11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 read with section 109, P. P. C.
2. The prosecution case is that on 20-7-1983, Inayat Ali petitioner abducted Mst. Hamida Bibi and took her to his house where she was subjected to rape by him, his son Nasir petitioner and his wife's brother Shah Din.
3. She was recovered on 14-9-1983 and was produced before a Magistrate on 15-9-1983 where she made a statement levelling allegation of abduction against Nasir and Inayat All petitioners and rape against all the petitioners. She stated that she was kept by the petitioners at different places for one and a half months, during which they had been committing rape with her.
4. Bail is asked for on the ground that there is a delay of nearly 50 days in lodging the F. I. R. That admittedly Mst. Hamida Bibi is a major lady and voluntarily entered into Nikah with Shah Din petitioner. In support of it, a copy of Nikahnama duly registered, has been appended with the petition. It is further contended that Muhammad Yasin and Muhammad Yamin P. Ws. Who stated about the abduction appeared before the police for the first time about fifty days after the occurrence and made contradictory statement to that of Mst. Hamida Bibi. They implicated Inayat only in her abduction whereas she had levelled allegation of abduction against Inayat and Nasir petitioners. It is next contended that the persons of the petitioners are no longer required by the police because, following the completion of the investigation, challan has been submitted in the Court. Lastly it is contended that except her Own solitary statement, there are no witnesses to the allegedrape with her.
5. Learned counsel for the petitioners has cited a number of authorities in support of his contentions. In Muni,- Ahmad v. The State (I), it was held
(1) 1983 P Cr. L J 2343 that in view of, the claim of the petitioner that he has solemnised marriage with the abductee and got his Nikah registered, the case becomes of further enquiry and the bail was granted. Mumtaz Hussain v. The State (1) is also an identical case.
6. In view of the fact that Mst. Hamida Bibi is sui juris and the allegation as to whether she was forced to solemnize Nikah has yet to be looked into, I consider it to be a case of further enquiry and, therefore, admit the petitioners to bail in the sum of Rs, 10,000 (ten thousand) each with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Cantt.
7. I feel here mentioning an important point having far reaching consequences. The incidents giving rise to proceedings like the one in hand can be greatly reduced if the Nikah Registrars appointed under the Muslim Family Laws Ordinance, 1961, instead of simply filling the various columns of the Nikahnama, in routine, realise that the duty that they are required to perform is very sacred because rights to succession, maintenance, dower, divorce, legitimacy of children and several other rights flow from a valid marriage. As public servants which essentially they are, they should demonstrate more sense of responsibility before authenticating the Nikah by making proper enquiries as to the competency of the parties to understand the nature of their act, their ages and whether or not they are so acting of their free will and without any compulsion.
' In our society, the girl is normally given in marriage by her parents and in their absence by the nearest blood relation and that too mostly at her ordinary place of residence. If this solemn ceremony is performed by the persons not answering the above description and at a place other than the ordinary place of residence of the girl in closed doors under mysterious C circumstances a heavy duty is cast on the Nikah Registrars to thoroughly confirm and probe into the circumstance under which the marriage is being solemnized before uthenticating the same. If they fail, they can, to a grant extent, be held responsible for the complications that follow in addition to running the risk of being involved in litigation, both civil and criminal.
Cited by 6 cases
- MUHAMMAD ISHAQ and anothers vs Mst. ANIQA BATOOL 2012 PLD Balochistan 133
- SAJJAD HAIDER vs IMAM BAKHSH and others 1999 MLD 2472
- MANAZAR HUSSAIN SHAH vs THE STATE 1999 P Cr. L J 86
- KANWAR ABDUL RASHID vs Capt. MUNIR AHMAD, ASSISTANT COMMISSIONER, ARIFWALA, DISTRICT PAKPATTAN and 5 others 1996 P Cr. L J 1272
- (Syed) FARMAN ALI vs ABID ALI Etc. K.L.R. 1995 Criminal Cases 89
- FARMAN ALI Versus ABID ALI 1995 PLD 364