Mst. SHAMIM AKHTAR and another vs THE STATE
This matter arises from a post-arrest bail application filed on behalf of the petitioners in connection with F.I.R. No. 328 of 1999 registered under Section 18/10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and subsequently amended to include Sections 420, 468, and 471 of the Pakistan Penal Code 1860. The core legal question concerns whether the petitioners are entitled to post-arrest bail when the female petitioner asserts a valid marriage to her co-accused co-petitioner, thereby negating the allegation of Zina, notwithstanding the State's contention that the Nikahnama is a forged document. The Lahore High Court held that since the factum of marriage between the petitioners was admitted and required further probe, the case fell within the scope of further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898. The court laid down the principle that where a valid marital relationship is claimed and prima facie admitted in circumstances involving allegations of Zina, the matter warrants further inquiry, entitling the accused to the concession of post-arrest bail.
- Whether post-arrest bail should be granted under Section 497(2) of the Code of Criminal Procedure 1898 when the factum of marriage between co-accused is admitted in a case registered under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Does an allegation that a Nikahnama is a forged document preclude the court from granting bail on the ground of further inquiry?
- Section 18/10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Petitioner is involved in case F.I.R. No,328 of 1999, dated 3-9-1999, under section 18/10, Offence of Zina (Enforcement of Hudood) Ordinance, No,VII of 1979, registered with Police Station Saddar Mian Channoon at the behest of one Muhammad Aslam. During course of investigation sections 420/468 and 471, P.P.C. Were added to the list of offences by the Investigating Officer and for that reason amended petition was made on behalf of the petitioner. The only allegation figuring in the first information report against the petitioner is that petitioner Muhammad Iqbal was found lying naked on a cot at the Dera of one Rustam, situated in Chak No,117/15-L. Two persons namely, Muhammad Aslam and Muhammad Akram caught hold of them and produced them before the police, which initiated criminal proceedings against them, and the case F.I.R. No,328, dated 3-9- 1999 for the abovesaid offences stood registered against them. They preferred an application for grant of post-arrest bail before learned Additional Sessions Judge, Mian Channoon, which was dismissed by him vide his order, dated 25-10-1999. Hence this application before this Court.
2. Learned counsel for the petitioner submits that as a matter of fact Mst. Shamim Akhtar is a legally-wedded wife of Muhammad Iqbal/petitioner and they had contracted marriage on 3-5- 1999. Mst. Shamim, who is present in this Court, does not controvert this aspect of the matter.
Learned counsel contends that accusations brought against the petitioner require further probe.
3. Conversely, learned counsel for the State argued that Nikahnama was a forged document and, as such, it cannot be relied upon to establish the factum of marriage.
4. I have heard both the sides and perused the record with the able assistance of learned counsel for both the sides. I am of the view that since the factum of marriage of Mst. Shamim Akhtar with Muhammad Iqbal is admitted, the case of the petitioner falls under subsection (2) of section 497, Cr.P.C. Being that of further inquiry. Accordingly, I admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs,25,000 with one surety in the like amount to the satisfaction of the trial Court.