Khadim Hussain And Other vs The State
The petitioners sought confirmation of their ad-interim pre-arrest bail in a case registered under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, arising from allegations of abduction and illicit relations while a prior marriage allegedly subsisted. The core legal question was whether the petitioners were entitled to confirmation of pre-arrest bail given the existence of a disputed Nikah Nama and claims of a valid marriage following divorce. The Lahore High Court held that the allegations required further probe and inquiry, and since the petitioners had joined the investigation and presented a Nikah Nama without contrary evidence of zina apart from the marriage claim, the pre-arrest bail should be confirmed. The key principle laid down is that where the foundational allegations of an offense under the Hudood laws require further inquiry and the accused present prima facie evidence of a marriage via a Nikah Nama after having joined the investigation, pre-arrest bail is appropriately confirmed.
- Whether pre-arrest bail can be confirmed when the allegations require further inquiry and a disputed Nikah Nama is presented?
- Does the joining of investigation by petitioners accused under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 support the confirmation of pre-arrest bail?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
MUHAMMAD FARRUKH MAHMUD, J. - The petitioners seek confirmation of their ad-interim pre-arrest bail in case F.I.R. No. 28 registered at Police Station, Ahmed Yar, District Pakpattan Sharif on 19.3.2002 for an offence under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. According to the F.I.R. Mst. Meraj Bibi-petitioner was married with one Muhammad Riaz son of Niaz and during the persistence of marriage Khadim Hussain-petitioner developed relationship with Mst. Meraj Bibi. It is further stated in the F.I.R, that subsequently Khadim Hussain abducted Mr. Meraj Bibi and she was seen in the company of the accused by the PWs.
3. I have heard the learned counsel for the parties and have also perused the record. It has been admitted that the petitioners have joined the investigation. The petitioners Khadim Hussain and Mst. Meraj Bibi claim to be husband and wife while Shahid accused is younger brother of Khadim Hussain petitioner. The claim of the petitioners is based on Nikah Nama according to which Khadim Hussain and Mst. Meraj Bibi married each other after obtaining divorce from ex- husband Muhammad Riaz. The allegations as levelled in the F.I.R, need further probe and inquiry. Except for the admission of Nikah of the petitioners Khadim Hussain and Mst. Meraj Bibi there is no evidence available on record to show that the petitioners were committing zina.
4. For what has been discussed above I am m< lined to confirm the ad-intens bail already granted to the petitioners subject to their furnishing fresh bail bonds in the sum of Rs. 50,000/- (Rupees fifty thousand only) each with one .Surety, each in the like amount to the satisfaction of the learned Trial Court.