GHULAM AKBAR SHAH vs THE STATE
This matter concerns two consolidated bail petitions filed by Ghulam Akbar Shah and Mst. Zahida Bibi, who were accused in F.I.R. No. 145 of 1999 for offences under the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question was whether the petitioners, who claimed to be sui juris and married, were entitled to post-arrest bail despite allegations that their Nikahnama was fraudulent and that they had committed Zina prior to their marriage. The court observed that the investigation was complete but the challan had not yet been submitted. Holding that the determination of the petitioners' guilt, particularly regarding the validity of their marriage and the alleged offence, required further inquiry, the court granted bail. The key principle laid down is that where the guilt of an accused person is open to further inquiry, especially in cases involving disputed claims of marriage between sui juris parties, the court should exercise its discretion to grant bail rather than keeping the accused in custody pending trial.
- Does the allegation of a fraudulent Nikahnama in a Zina case preclude the grant of bail when the accused are sui juris?
- Is the question of guilt open to further inquiry when the investigation is complete but the challan has not been submitted?
- Should bail be granted when the primary dispute involves the validity of a marriage between two sui juris individuals?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
' This order will dispose of two bail petitions i,e, Criminal Miscellaneous No,2078-B of 1999 filed by Ghulam Akbar Shah as well as Criminal Mikellaneous No,2479-B of 1999 filed by Mst. Zahida Bibi, as both are required in case F.I.R. No,145 of 1999, dated 22-7-1999, under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
2. The main ground urged by the learned counsel is that both the petitioners are sui jurist and have voluntarily married with each other. It is added that the alleged abductee Mst. Zahida Bibi herself has been made accused in this case as it was found to be a case of elopement. Learned counsel for State has opposed the bail on the ground that the Nikahnama prepared on 28-7-1999 has been found to be false during the investigation. The learned Sessions Judge has assigned detailed reasons in support of the order as according to him in-between the period of abduction and that of Nikah the petitioners kept on committing Zina with each other. The question whether the parties who are sui jurist and have contracted marriage which is admitted by learned counsel for State, have committed any offence is a question which needs further inquiry. Although investigation has been completed, yet the challan has not been submitted so far.
3. Without expressing any opinion on the merits of the case, considering that the question of guilt or otherwise of the petitioners is open to further inquiry. Both the petitioners are, therefore, admitted to bail subject to their furnishing bail bond in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of the Area Magistrate trial Court.