GULZAR HUSSAIN vs THE STATE
This post-arrest bail application arose from an FIR registered under Section 16 read with Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 against the petitioner for allegedly enticing away his sister-in-law for illicit intercourse. The petitioner contended that he had divorced his previous wife (the complainant's sister) and subsequently contracted a valid Nikah with the alleged victim, supported by documentary evidence including a divorce deed and Nikahnama. The State opposed the application, arguing the second marriage was void due to the subsistence of the first marriage. The core legal question was whether a plea of valid marriage, where the validity of Nikah is disputed, renders the accused's guilt a matter of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The Lahore High Court granted bail, holding that the validity of a Nikah is an issue for the Family Court rather than the Criminal Court, and the petitioner's plea of a valid marriage brought the case within the ambit of further inquiry under Section 497(2), Cr.P.C.
- Does a plea of valid marriage supported by a Nikahnama make an offence under the Offence of Zina (Enforcement of Hudood) Ordinance 1979 a case of further inquiry under Section 497(2) Cr.P.C.?
- Can a Criminal Court decide the validity or voidability of a Nikah when determining a bail application?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Gulzar Hussain, the petitioner through the instant petition has sought for post-arrest bail in case F.I.R. No,2 dated 1-1-2002 under section 16/10 of the Offence of Zina (Enforcement of Hudood)
Ordinance No,VII of 1979 registered with Police Station Sarai Sidhoo, District Khanewal.
2. Briefly the facts of the prosecution case as contained in the F . I.R . Are that Mst. Kausar, the sister of the complainant was married to Gulzar Hussain (petitioner) about 10/12 prior to the same. Due to the same, he was on visiting terms with them. He about six months prior to the same had developed illicit liaison with his another sister namely Mst. Shahzadi. He stopped him from visiting to his house. On 2-12-2001, he was out of his house. He (petitioner) in his absence come to his house and took her (Mst. .Shahzadi) with him on the pretext to pluck the cotton from his land. She when did not return till the next day, he (complainant) went to his house and enquired about her.
His sister Mst. Kausar Bibi told him (Gulzar Hussain) that he had taken her to her house. On this, he started searching her. During the same, Master Abid Hussain and Heetam met him at Adda Haveli Pull. They told him that at about 10/11 a.m. He (Gulzar Hussain), Nasir Iqbal, Iqbal and two unknown persons had taken her away in a white colour car. He (Gulzar Hussain) alongwith others had enticed her away for Zina.
3. It has been contended on his behalf that he has falsely been roped in; that he had in fact divorced Mst. Kausar Bibi on 17-8-2001 and, thereafter, had entered into Nikah with Mst. Shahzadi on 22-11-2001 and so he has committed no offence at all; that his Nikah with Mst. Shahzadi, even if he allegation against him may be taken true as it is may be not void; that the question of validity or otherwise of his Nikah with her (Mst. Shahzadi) can be determined only by competent Family Court and not by the Criminal Court and so his case is covered under subsection( 2) of section 497, Cr.P.C. Requiring further inquiry into his guilt; that he is behind the bars since 23-9-2002; and that he is previous non-convict.
4. On the other hand, the learned counsel for the State has opposed the petition on the ground that he during the subsistence of marriage with his first wife Mst. Kausar Bibi has contracted second marriage with Mst. Shahzadi and hence the same is void and so he is apparently connected with the offence.
5. I have carefully considered the submissions made from both the side with the help of available record.
6. There is on the police record, the copy of divorce deed dated 17-8-2001 by him (petitioner) to his first wife Mst. Kausar Bibi. There is also copy of his Nikahnama with Mst. Shahzadi. According to the same, their marriage was solemnized on 22-11-2001. Mst. Shahzadi, so far admittedly has not come forward with any plea of denial of her Nikah with him. The question that if his Nikah with Shahzadi is valid or not can more appropriately be gone into by competent Family Court and not by the Criminal Court. According to the parties present, none from them so far has gone to Family Court for resolution of such question or issue. However, I am clear in my mind that in view. Of his plea of valid marriage with Mst. Shahzadi, his case has become of further inquiry into his guilt and so the same is covered under subsection (2) of section 497, Cr.P.C. He is behind the bars since his arrest and stated to be previous non-convict.
7. In these circumstances, I find him entitled to bail. The petition, therefore, is accepted and he is admitted to bail provided to furnishes bail bond in the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court.