Mst. SALMA and another vs THE STATE and another
This petition for post-arrest bail arises from a criminal case registered under the Offences of Zina (Enforcement of Hudood) Ordinance, 1979, following allegations of enticement and Zina. The petitioners, Mst. Salma and Mamoor Khan, contended that they had contracted a valid Nikah and were sui juris, while the complainant alleged that Mst. Salma was already married to him. The core legal question was whether bail should be granted when the validity of a prior marriage, which forms the basis of the criminal charge, is currently sub judice before a Family Court. The Court held that because the validity of the earlier Nikah is a disputed fact pending adjudication in the Family Court, the prosecution's case against the petitioners requires further inquiry. Consequently, the Court granted bail to the petitioners. The key principle laid down is that where the essential ingredient of a criminal charge, such as the validity of a marriage in a Zina case, is a matter of civil dispute pending before a competent Family Court, the accused is entitled to the benefit of further inquiry and should be enlarged on bail.
- Whether an accused is entitled to bail when the validity of a marriage, which is the basis of a Zina charge, is sub judice before a Family Court?
- Does a pending civil suit regarding the validity of a Nikah constitute grounds for 'further inquiry' in a criminal case under the Offences of Zina (Enforcement of Hudood) Ordinance 1979?
- Section 5, Offences of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offences of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offences of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
' Mst. Salma and Mamoor Khan, herein petitioners, have filed this petition for their release on bail in case F.I.R. No,171, dated 30-9-1999, under sections 5, 11 and 16 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Ghaznikhel, as the Courts below have declined the same relief.
2. Brief facts of the case are that on 30-9-1999, one Inshaullah Khan, lodged a report to the effect that he contracted marriage with Mst. Salma seven days earlier and after three days of the marriage, she went to her parents house but today he came to know that Mamoor Khan with the help of Abdul Qayyum Khan enticed his wife in order to commit Zina with her. Accordingly, the above referred criminal case was registered against them.
3. The learned counsel for the petitioner contended that the petitioners being sui juris have contracted valid Nikah with each other. He referred to the statement of Maulana Muhammad Nawaz dated 1-10-1999, recorded under section 161, Cr.P.C. And also before the Family Court, wherein he stated that he performed Nikah twice in respect of Mst. Salma and Inshaullah Khan, which in normal circumstances, is not at all possible. Further submitted that petitioner No,1, after gaining knowledge about alleged claim of respondent No,2, filed a suit for jactitation of marriage in the Family Court while respondent No,2 filed suit for the restitution of conjugal rights. On the other hand, the learned counsel for the complainant/respondent submitted that in the presence of earlier Nikah having been performed between respondent No,2 and petitioner No,1 Mst. Salma Bibi, second Nikah allegedly performed by petitioners has no validity and sanctity in the eye of law and as such they have committed the offence charged with. Hence their plea for bail be rejected on this count alone.
4. After hearing the learned counsel for the parties and going through the record it becomes clear that the validity of earlier Nikah allegedly performed between petitioner No,1 and respondent No,2 is sub judice before the Family Court. Unless and until the validity or otherwise of the earlier Nikah is not decided by the Family Court, the case of the petitioners becomes of further enquiry and they deserve to be enlarged on bail, reliance is placed at 1997 SCM R 37 and PLD 1994 SC 236.
5. Resultantly, petitioners are admitted to bail in the sum of Rs .2 lacs each, with two sureties, each in the like amount, to the satisfaction of the Illaqa/Duty Magistrate who shall see that the sureties are local, reliable and men of means.