MUHAMMAD TARIQ vs THE STATE
This post-arrest bail petition arose from a case registered under Section 10(3)/16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, where the petitioner was accused of abducting the complainant's sister and committing Zina with her. The core legal question was whether the petitioner was entitled to bail based on a disputed Nikahnama, a previous acquittal involving the same abductee, the abductee's earlier statement before a Magistrate validating the marriage, and lack of trial progress. The Lahore High Court observed that the petitioner was previously acquitted in an earlier Hudood case concerning the same abductee, no suit for jactitation of marriage had been filed by her despite knowledge of the alleged Nikah, and the trial had not commenced after seven months of detention, with copies of statements under Section 161, Cr.P.C. not yet supplied. Holding that the case required further inquiry, the High Court granted bail subject to surety bonds.
- Whether a claim of valid marriage supported by a previous acquittal and an unchalleged Nikah entitles an accused to bail in a Zina prosecution?
- Does the non-filing of a suit for jactitation of marriage by the alleged victim render a Zina case one of further inquiry?
- Whether prolonged detention without trial progress or supply of Section 161 Cr.P.C. statements constitutes sufficient ground for granting post-arrest bail?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' Through the instant petition, the petitioner has sought bail after arrest in a case registered vide F.I.R. No, 55 of 1999 under section 10(3)/16, Offence of Zina (Enforcement of Hudood) Ordinance at Police Station Kot Samba, District Rahimyar Khari.
2. The allegation against the petitioner is that he alongwith others abducted the sister of the complainant and committed zina with her.
4. Earlier the petition for bail after arrest moved by the petitioner was dismissed by the learned Sessions Judge, Rahimyar Khan vide his order, dated 10-5-1999. Hence this petition Learned counsel for the petitioner argues that the alleged abductee is his legally wedded wife as is evident from copy of Nikahnama, dated 23-3-1997, that in her statement recorded before a learned Magistrate in the proceedings of a private complaint filed against the complainant and others she not only negated the prosecution version but also acknowledged the petitioner as her husband; petitioner was earlier involved in a hudood case in respect of the present alleged abductee vide F.I.R. No,300 of 1997. However, he was acquitted after the conclusion of the trial by the learned Trial Court; there is a delay of seven days in lodging the F.I.R.; petitioner is behind the bars for the last seven months and trial has not yet even been commenced; the other two accused have been declared innocent by the police and there is no apprehension of absconding or tampering with the prosecution evidence.
5. On the other hand learned counsel for the complainant assisted by, the learned counsel for the State, vehemently opposed the bail petition on the ground that the alleged abductee, during the hearing of the petition before the learned Sessions Judge, Rahimyar Khan disowned her statement before the learned Magistrate and supported the case of the prosecution. It is also submitted that no doubt the alleged abductee has not filed any suit for jactitation of marriage against the petitioner but the concerned Union Council certified that no record of Nikah between her and the petitioner is available and the alleged abductee is now married with one Nadeem.
6. I have given due consideration to the valuable arguments of the learned counsel for the parties, and perused the record.
7. There is no denial that in an earlier case registered against the petitioner in respect of the present alleged abductee, after the trial of the case; the learned Trial Court passed an order of acquittal; no suit for jactitation of marriage has been filed till today by the alleged abductee with regard to her Nikah with the petitioner despite the fact that the same had come to the knowledge of all the concerned parties during the earlier trial; statement made before the learned Magistrate by the alleged abductee; detention of the petitioner for the last seven months without any progress in the trial so much so copies of the statements of the P.Ws. Under section 161, Cr.P.C. Have not yet been supplied, thus the case of the petitioner falls within the category of further inquiry. Support has been derived from the following judgments;. NLR 1996 SD 37; 1999 PCr.LJ 86; NLR 1988 SD 15.
' Resultantly, the instant petition is allowed and the petitioner is admitted to bail subject to furnish his bail bonds in the sum of Rs, one lac with two sureties each in the like amount to the satisfaction of the learned Trial Court