MUHAMMAD HANEEF vs THE STATE
This matter concerns a petition for post-arrest bail filed by an accused charged under Section 494 of the Pakistan Penal Code 1860 and Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, following the registration of an F.I.R. regarding an allegedly bigamous marriage. The core legal question was whether the petitioner was entitled to bail pending trial, given the contention that the marriage was contracted in good faith based on the wife's claim of being divorced, and considering that the co-accused had already been granted bail. The Court held that the case against the petitioner required further inquiry, particularly regarding the prosecution's evidence of the petitioner's knowledge of the wife's marital status. Emphasizing that pre-trial detention should not serve as a punitive measure, the Court granted bail to the petitioner. The key principle laid down is that where the prosecution's evidence regarding the mens rea of an accused is subject to further inquiry and a co-accused has already been admitted to bail, the petitioner is entitled to the concession of bail pending the conclusion of the trial.
- Is an accused entitled to bail when the prosecution fails to provide evidence of the accused's knowledge regarding the marital status of their spouse at the time of marriage?
- Does the grant of bail to a co-accused constitute a valid ground for the release of the petitioner on the principle of consistency?
- Should an accused be kept in custody pending trial when the case against them is open to further inquiry?
- Section 494, Pakistan Penal Code 1860
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
1. ' The petitioner is an accused of offence under section 494, P.P.C. Read with section 10(2), Ordinance VII of 1979, vide F.I.R. No,143 registered with Police Station Qadirabad, Mandi Bahauddin.
2. The petitioner was taken into custody on 26-8-2000 and since then he is confined in judicial lock- up. It is argued by the learned counsel that petitioner's wife Mst. Kausar Bibi had in fact been divorced by her previous husband and thereafter, the petitioner had married her. Further, submits that suit for declaration that she had been divorced by her previous husband is pending adjudication, therefore, case against the petitioner is open to further inquiry. It is further supplemented that co-accused of the petitioner Mst. Kausar has been admitted to bail and if it is viewed from this angle that Mst. Kausar represented herself to be a divorced woman then there is no evidence available with the prosecution that petitioner was aware of the fact that she had not been divorced by her previous husband. The position even today is that Mst. Kausar does not admit herself to be wife of previous husband and claims that she had been divorced. It appears that the prosecution perhaps even did not advert to this aspect of the case as to what legal evidence is available against the petitioner to burden him that he had knowledge that Mst. Kausar Parveen had not been divorced and in spite of that he contracted marriage with her. Be that as it may, I do not want to express any opinion on this aspect of the case, lest it may prejudice the proceedings before the learned trial Court. Suffice it to say that case against the petitioner is open to further inquiry and he cannot be kept in jail as a matter of punishment. He is, therefore, admitted to bail on his furnishing bail bond in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of learned trial Court.