Mst. AMRIN and 3 others vs THE STATE
The applicants approached the Sindh High Court seeking pre-arrest bail in a case registered under sections 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, arising from an alleged abduction after a marriage proposal was refused. The core legal question was whether an offence under the Zina Hudood Ordinance was made out where the alleged victim stated she was not abducted, had contracted a valid marriage with the co-applicant, and was living harmoniously with him as his wife. The court held that given the victim's categorical statement denying abduction and confirming a lawful marriage, no offence under sections 11/16 of the Zina Hudood Ordinance was made out. The key principle laid down is that where an alleged victim of abduction denies the charge and affirms a valid marriage and peaceful cohabitation with the accused, pre-arrest bail previously granted will be confirmed, subject to cooperation with the investigating agency.
- Whether pre-arrest bail should be confirmed when the alleged victim denies abduction and states she married the accused of her own free will?
- Does an offence under sections 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 subsist when the parties have consummated a valid marriage?
- Can the High Court exercise concurrent jurisdiction under section 498 of the Code of Criminal Procedure 1898 to grant pre-arrest bail due to threats of violence such as Karokari?
- Section 498, Code of Criminal Procedure 1898
- Section 4, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
1. ' Present applicants had applied for pre-arrest bail straightaway before this Court and they were granted interim bail by this Court on 19-2-2001 and today matter is fixed for confirmation or otherwise.
2. ' Brief facts of the case are that the complainant Usman lodged report with Police Station Nauabad District Sanghar bearing Crime No,7 of 2001 wherein he has stated that he has got five sisters, out of them Mst. Umeran who is one of the applicants in this matter was married to one Ghazi Khan who has expired. According to the complainant, Nabi Bux had asked for marriage with the aforenamed Mst. Umeran but such offer was refused by the complainant party and according to the complainant on 31-1-2000 at night time when he and his brother Ali Asghar and Umer were sleeping in the house and their sister Mst. Umeran was also asleep at 4-00 a.m. On 1-2-2001 they heard the cries of Mst. Umeran to which they were woken up and found the present applicant Nabi Bux who was taking away Mst. Umeran and was being associated by other co-applicants.
3. According to the complainant she was taken away by Nabi Bux as accused had demanded the hand of Mst. Umeran and the same was refused, and therefore, Nabi Bux in collusion with co- applicants has committed the offence under sections 11/16, Zina Hudood Ordinance.
4. ' After registration of the F.I.R. Police took up investigation and the present applicants having apprehension being murdered before concerned Court viz. District and Sessions Court Sanghar, applied for bail before arrest before this Court with contention that this Court has got concurrent jurisdiction under section 498, Cr.P.C. Whereby they were granted bail on the ground that if they appear before the concerned Sessions Court, Sanghar, they will be murdered over the issue of Karokari.
5. ' Today Mr. Azhar Tunio, learned A.A.-G. Has submitted that the police papers are with him but has complained that the present applicants are not cooperating with the Police Investigating Agencies.
6. On merits the learned counsel for the State has opposed the confirmation of the bail with contentions that the offence has been committed by Nabi Bux one of the applicants and so also by Mst. Umeran but could not reply satisfactorily when asked as to how the offence falls under section 4 of the Zina Hudood Ordinance when Mst. Umeran has consummated marriage with Nabi Bux, one of the applicants, and in this regard they have placed on record the Nikahnama and an affidavit which has been sworn in by Mst. Umeran before the Mobile Magistrate Hyderabad. Moreover, she has filed an affidavit before this Court while seeking bail before arrest and she has categorically submitted in her affidavit that she apprehends danger and apprehension that if she goes to Sanghar she will be killed, and therefore, she has approached this Court for pre-arrest bail. She has not supported the contention of the prosecution. Today she is also available as one of the applicants and she has been questioned by Court whether she was forcibly abducted by Nabi Bux to which she replied that neither she was abducted nor any offence has been committed by Nabi Bux and she is residing with Nabi Bux as his wife and she has consummated marriage with him. In view of the admission of the aforenamed Mst. Umeran who is one of the applicants that she and Nabi Bux both are leading harmonious life as husband and wife, the offence is not falling under section 4 of Zina Hudood Ordinance and no offence is made out under sections 11/16, Zina Hudood Ordinance and after the statement given by the said Mst. Umeran before this Court learned counsel for the State has not opposed to the confirmation of bail and has recorded very frankly his no objection but has prayed that the applicants be directed to extend their cooperation with the Investigating Agencies. In view of the aforementioned facts and circumstances and no objection recorded by the learned counsel for the State, the interim bail granted earlier by this Court to the applicants is hereby confirmed. However, the applicants are directed to cooperate with Investigating Agencies and in the event of failure, the State is at liberty to file application for cancellation of their bail.
7. Above observations are tentative.
8. Interim .