MUHAMMAD MUMTAZ and others vs THE STATE
This is a post-arrest bail application filed by two petitioners, Muhammad Mumtaz and Mst. Abida Parveen, who were charged under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Section 380, Pakistan Penal Code 1860, following an F.I.R. alleging abduction and theft. The core legal question was whether the petitioners were entitled to bail given their claim of a valid, subsisting marriage, which would negate the charge of Zina. The court held that the petitioners were entitled to bail. The ratio of the decision rests on the fact that the female petitioner was sui juris and the petitioners produced a Nikahnama, verified during the investigation, supporting their claim of a legal marriage. Consequently, in the absence of evidence to the contrary or medical examination suggesting otherwise, the court determined that the allegations required further inquiry. The key principle laid down is that where a marriage is claimed and supported by documentation during the investigation, the charge of Zina becomes a matter of further inquiry, thereby entitling the accused to the concession of bail.
- Does the production of a Nikahnama by the accused in a Zina case constitute grounds for further inquiry?
- Is an accused entitled to bail when the prosecution fails to provide evidence of Zina and the accused claims a legal marriage?
- Does the status of a female as sui juris impact the determination of bail in abduction and Zina cases?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 380, Pakistan Penal Code 1860
ORDER
This application for bail after arrest has been filed by Muhammad Mumtaz and Mst. Abida Parveen who are involved in this case arising out of F.I.R. No,1.5 of 2002 registered on 16-1-2002 in Police Station Badami Bagh, Lahore under sections 10/11 of the offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and section 380, P.P. C .
2. F.I.R. was lodged by one Iftikhar Ahmad stating therein that for the last eight months he had been living at Lahore with his family members, his younger brother Ramzan and sister Abida. Bibi aged 18/19 years. He had engaged his sister Mst. Abida Bibi with one Muhammad Nawaz. One Muhammad Mumtaz alias Taj who was the sister's son of Muhammad Nawaz started visiting his house. On account of relationship, he did not forbid him for doing so. On 7-12-2001 the complainant proceeded to the place of his duty while his wife and mother also proceeded to their relatives living at Chungi. Amar Sadhu. His sister Abida was alone in the house. When the complainant his wife and mother returned in the evening, Mst. Abida was found missing. On searching for her, Muhammad Ishaque and Muhammad Akram told them that around 9-00 a.m. they had seen Mst.
Abida going alongwith Muhammad Mumtaz alias Taj and Sher Afzal in a rickshaw. While leaving Mst. Abida and Mumtaz accused had also taken away ornaments weighing three Tolas and also an amount of Rs,15,000 in cash. The complainant alleged that Mumtaz alias Taj and Sher Afzal had enticed away his sister Mst. Abida with the intention to commit Zina.
3. Arguments have been heard and record perused.
4. Learned counsel for the petitioner has argued that Mst. Abida Parveen petitioner No,2 is a sui juris, and on 12-1-2002 the petitioners had contracted marriage with their tree-will and were living happily as husband and wife. He has argued that they are legally wedded husband and wife and that no offence had been committed and that in the course of investigation Nikahnama has been found correct and duly registered with the Nikah Registrar and the Union Council and the witnesses of the Nikah have also supported the Nikah. He has argued that in the absence of any proof it cannot be assumed that the petitioners have committed Zina and that there is absolutely no evidence concerning the allegation of Zina and that the petitioners are entitled to the concession of bail.
5. Learned counsel for the State has resisted the bail application on the ground that the petitioners have been committing Zina with each other.
6. I have carefully considered the arguments. There is no assertion that the petitioner Abida Parveen is not a sui juris. In the absence of any evidence it cannot be assumed that the petitioners had been committing Zina with each other. The petitioner have taken the plea that they have married each other and are living together as legally wedded husband and wife.
7. Mst. Abida Parveen does not appear to have been medically examined. Under the circumstances of the case, when the petitioners have taken the plea that they are legally wedded to each other, it is clearly a case of further inquiry and thus both the petitioners are entitled to the concession of bail. Accordingly the bail application is accepted and the petitioners namely Muhammad Mumtaz and Mst. Abida Parveen are admitted to bail in the sum of Rs,40,000 with one surety each in the like amount to the satisfaction of learned trial Court.