FAREED BAKHSH vs THE STATE
This petition arises from a request for post-arrest bail in a criminal case registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, following allegations of abduction. The core legal question was whether the petitioner was entitled to bail given the conflicting evidence regarding the alleged abduction and the existence of a disputed Nikahnama. The petitioner argued that the alleged abductee was his legally wedded wife, supported by a Nikahnama, while the prosecution relied on the abductee's subsequent statement under Section 164 of the Code of Criminal Procedure 1898 claiming coercion. The Court observed that the validity of the marriage was a matter for the civil court to determine. Furthermore, the Court noted affidavits from the alleged abductee asserting her age and free will, alongside affidavits from prosecution witnesses denying knowledge of the occurrence. Consequently, the Court held that the case against the petitioner required further inquiry. The Court granted bail, establishing the principle that where material contradictions exist regarding the commission of an offense, the case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898.
- Does the existence of a disputed Nikahnama in an abduction case warrant the grant of bail on the grounds of further inquiry?
- Can a case be considered one of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 when prosecution witnesses deny the occurrence?
- Is the validity of a marriage a matter to be determined by a criminal court during bail proceedings or by a civil court of competent jurisdiction?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' Through this petition the petitioner seeks his post-arrest bail in case F.I.R. No.182, dated 7-8-2003 registered under section 11, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station Kot Mithan, Rajanpur.
2. Learned counsel appearing on behalf of the petitioner contends that petitioner is innocent and alleged abductee namely Mst. Rukhsana is legally wedded wife of the petitioner; that co-accused of the petitioner Munir Ahmad had already been granted bail by the Court; that all the co-accused of the petitioner has also been declared innocent by the police which falsifies the prosecution case as narrated in . The F.I.R. Lastly submits that the Nikahriama of the abductee with the petitioner is admitted but now the said . Abductee alleges that she was forced to sign the Nikahnama and thereafter she had filed a suit for justification of marriage which is pending adjudication before the Court of competent jurisdiction.
3. Conversely, learned counsel for the State has strongly opposed the grant of bail.
4. I have heard the learned counsel for the parties and also perused the record carefully. The factum of Nikahnama dated 7-8-2003 is admitted but subsequently the alleged abductee in her statement under section 164, Cr.P.C. Had alleged that she was forced to sign Nikahnama. The genuineness or otherwise of the same would be determined by the trial Court in the civil proceeding pending before the Court of competent jurisdiction. It has also been noticed that there is affidavit of the same lady duly sworn wherein she had categorically stated that she is about 17 years of age and sui juris and wants to marry with her will and with her own choice, the petitioner Ghulam Farid. There are affidavits of the two witnesses namely A Ghulam Asghar and Ghulam Shabbir who were nominated in the F.I.R. And stated that they have never seen any occurrence nor they had told anything with regard to the abduction of the alleged abductee. Their names had been included in the F.I.R. Without their knowledge. Keeping in view all these facts, I am of the view that the case against the petitioner is that of further inquiry and falls within the ambit of subsection
(2) of section 497, Cr.P.C. Entitling him to be released on bail. Accordingly I accept this petition and admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000 (one lac) with one surety to the satisfaction of the learned trial Court.