Mst. SHAMSHAD BIBI and another vs THE STATE and anothers
This judgment disposes of a bail application and a connected bail cancellation application arising from a case registered under sections 5, 10, and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 506 of the Pakistan Penal Code. The core legal question concerned whether the petitioners, who claimed to be lawfully married after the female petitioner allegedly repudiated her childhood marriage upon attaining puberty, were entitled to post-arrest bail, and whether the bail granted to a co-accused should be cancelled. The Peshawar High Court held that reasonable grounds did not exist to believe the accused were connected with the charged offence, noting that the female petitioner had attained puberty and her subsequent marriage amounted to a valid repudiation of any prior minor marriage under Islamic law. Consequently, the court accepted the bail petition of the petitioners and dismissed the bail cancellation application. The key principle laid down is that a female whose nikah was contracted during minority possesses the right to repudiate it upon attaining puberty, and her subsequent marriage executed after attaining puberty does not constitute an offence under the Hudood laws.
- Does the second marriage of a female whose nikah took place during minority amount to a valid repudiation of her first marriage upon attaining puberty?
- Are accused persons entitled to post-arrest bail when a female petitioner allegedly contracted a valid marriage after attaining puberty, thus negating reasonable grounds of guilt under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979?
- Can bail granted to a co-accused be cancelled when no strong or exceptional grounds are established by the complainant?
- Section 5, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 506, Pakistan Penal Code 1860
' Vide this order I propose to dispose of the bail application in hand as well as the Bail Cancellation Application No,219 of 1999, Moasam Khan v. The State and one another).
2. Petitioners, in the present case alongwith respondent No,2 (in connected B.C.A.) stand charged for having committed offences punishable under sections 5, 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinances, 1979 read with section 506, P.P.0 . , vide F . I. R . No,114 registered at Police Station Dadiwala, District Lakki Marwat on 6-8-1999.
3. The petitioners and respondent No,2 (in connected B.C.A.) after their arrest approached the Civil Judge/Judicial Magistrate, Lakki Marwat (Mr. Jehanzeb Shinwari) for bail. The Judicial Magistrate/ Civil Judge denied the concession of bail to them. The petitioners and respondent No,2 (in connected B.C.A.) then approached the Sessions Court, Lakki Marwat for the redress of their grievance. The Additional Sessions Judge, Lakki Marwat, (Mr. Wilayat Ali Khan) vide. His impugned order refused to enlarge them on bail but released respondent No,2, Mushke Alam (in connected B.C.A.) who happens to be the father/father-in-law of the other two petitioners.
4. The petitioners have now approached this Court taking that they have been legally wedded and are therefore, living as wife and husband, they further alleged that the story as set up by the complainant is false and incorrect and that, therefore, they are entitled to be released on bail not as a matter of grace but as a matter of right.
5. The complainant, on the other hand, has approached this Court with the request that the bail granted to Mushke Alam be cancelled, inter alia, on the ground mentioned in the petition (connected B.C.A.).
6. Mr. Sultan Sheheryar Marwat, Advocate, learned counsel for the petitioners, Mr. Saleemullah Khan, Advocate, learned counsel for respondent No,2, Syed Saeed Hassan Sherazi, learned Assistant Advocate-General for the State respondent No,1, and Mr. Mirza Ali Khan, Advocate, learned counsel for respondent No,2 (in connected B.C.A.) present and heard. Record of the case perused.
7. The allegations against the petitioners and respondent No,2 (in connected B.C.A.) need not be reiterated here as the same have been given in the F.I.R., as well as in the order of the Additional Sessions Judge, Lakki Marwat, Mr. Wilayat Ali Khan (para.3 of the order) elaborately.
8. The perusal of the record would show that it is not the prosecution case where petitioner No,2 and respondent No,2 (in connected B.C.A.) are charged for kidnapping the lady petitioner No,1 by force. It appears that petitioner No,1 had accompanied petitioner No,2 and respondent No,2 (in connected B.C.A.) out of her sweet will. According to the medical report petitioner No,1 is between 16 to 17 years of age and has attained puberty (Annexure-F). Annexure-G is the Nikah Nama regarding the marriage of lady petitioner No,1 with petitioner No,2. This Nikah has been duly registered at Sarai Naurang, District Lakki Marwat, by one Qasim Khan, Nikah Registrar. In the circumstances I am of the opinion that reasonable grounds do not exist for believing that the petitioners, as well as respondent No,2 in connected B.C.A. Are connected with the commission of offence charged with. The complainant's story that petitioner No,1 had been given by him in Nikah to one Ehsanullah still remains mystery because Ehsanullah has not come forward so far to claim that petitioner No,1 is his legally wedded wife. Beside this, it has been admitted by the complainant himself that the petitioner was allegedly married to Ehsanullah by him when she was a minor girl. If this factum is taken to be correct, then the lady petitioner No,1, had the right to repudiate her marriage after attaining puberty. In case Said Mahmood and another v. The State" reported as PLJ 1995 FSC 139 (PLD 1995 FSC 1) a Division Bench of the F.S.C. Held:--- "Section 10(2)---Zina, offence of-- ' Conviction for--Challenge to- Whether second marriage of Mst. Almas with co-appellant Said Mehmood tantamount to repudiation of her first marriage and she validly exercised her right to option of puberty--Question of--Under Islamic Law, a wife whose Nikah had taken place during minority, has right to repudiate it after attaining puberty. Held: Mst. Almas attained puberty and her second marriage tantamounted to repudiation of her first marriage--Held further: No offence was committed by both appellants Said Mehmood and Mst. Almas under provisions of Hudood Laws and they were properly married husband and wife--Both appeals accepted." (The underlining is mine).
9. In the circumstances, this bail petition is accepted and the petitioners are admitted to bail. They shall be released forthwith, if not required in any other case, provided they furnish bail bonds in the sum of Rs,one lac, each, with two sureties, each in the like amount, to the satisfaction of the Additional Registrar of this Court who shall see that the sureties are men of means having sufficient property in their names and belong to the settled area of District Laldci Marwat. Attested copies of the property documents/ National Identity Cards shall be obtained from them and placed on file for record.
10. The bail cancellation petition, for the reasons mentioned above, is held to be without any substance and is accordingly dismissed.