Mst. SHAHNAZ BIBI and another vs THE STATE
This bail petition arose from a case registered under Sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against the two petitioners. The prosecution alleged that petitioner No. 2 forcibly abducted petitioner No. 1, the complainant's daughter, for the purpose of committing zina after a marriage proposal was refused. The petitioners sought post-arrest bail, contending that petitioner No. 1 was sui juris and had validly contracted marriage with petitioner No. 2, that a registered Nikahnama existed, that there was an unexplained delay of one and a half months in lodging the FIR, and that they were falsely implicated. The State opposed bail on the ground that the offences fell within the prohibitory clause of Section 497, Code of Criminal Procedure 1898. The Lahore High Court observed that the petitioners claimed to be husband and wife via a registered Nikahnama executed prior to the FIR, making it a case of further inquiry. Consequently, the High Court allowed the petition and granted bail.
- Whether an accused is entitled to bail on the ground of further inquiry when a valid and prior registered marriage is pleaded in defence to charges of abduction and zina?
- Does an unexplained delay of one and a half months in lodging an FIR under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 support the grant of bail?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
' The two petitioners are involved in case F.I.R. No,281 of 1997, dated 21-9-1997 under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Burjwala, District Sahiwal.
2. According to complainant Kameer son of Fateh Muhammad, Muhammad Afzal, petitioner No,2 forcibly abducted Mst. Shahnaz Bibi, petitioner No,2, daughter of the complainant, for the purpose of committing zina. The motive for the alleged abduction stated to be was that Abdul Sattar had requested for the hands of Mst. Shahnaz Bibi for his nephew Muhammad Afzal which request was turned down by the complainant.
2. Earlier, the bail application of the petitioners was rejected by the learned Additional Sessions Judge, Sahiwal vide order, dated 12-9-1998 on the grounds that the Nikah of the petitioners is disputed one as the Maulvi who allegedly performed the Nikah has though sworn an affidavit that he never recited the Nikah of Shahnaz with Iqbal but unfortunately his licence stood cancelled on 17-7-1997 and as such his affidavit was of no avail to the petitioners and that the Nikah was recited out of the district and that too after five days of the occurrence.
3. Bail is now pressed on the grounds that the petitioners are innocent and have been falsely involved in the case and that Mst. Shahnaz, petitioner No, 1, being sui juris has contracted marriage with Muhammad Afzal, petitioner No,2 and both the petitioners are husband and wife and that there is delay of 1-1/2 months in lodging the F.I.R., without any plausible explanation and that no such Nikah has taken place with Zubair lqbal and that the ingredients of sections 10 and 11 of the Ordinance VII of 1979 are not attracted,
4. On the other hand, learned counsel for the State has opposed the petition on the grounds that both the petitioners are nominated accused in the case and the offence falls within the prohibitory clause contained in section 497, Cr.P.C.
5. I have given due consideration to the valuable arguments on both the sides and have gone through the record.
6. The tentative assessm ent of the facts shows that both the petitioners claim to be husband and wife vide registered Nikahnama and that too one month prior to registration of the F.I.R., and that admittedly according to complainant himself, the hand of petitioner No,1 Shahnaz Bibi had been asked by Muhammad Afzal, petitioner No,2 make the case of the petitioners one of further inquiry, as such, this petition is allowed and the petitioners are directed to be released on bail provided they furnish bail bonds in the sum of Rs,10,000 with one surety each in the like amount to the satisfaction of the trial Court/Illaqa (Judicial) Magistrate.