MUHAMMAD NAZIR vs ANWAR ALI SHAH and another
This petition was filed by Muhammad Nazir seeking the cancellation of post-arrest bail granted to Respondent No. 1, Anwar Ali Shah, in a case registered under the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question was whether the grant of bail by the Additional Sessions Judge was improper given that a previous bail application had been rejected by a different judge, and whether the pendency of civil litigation regarding the validity of the marriage between the accused and the alleged abductee constituted a change in circumstances warranting bail. The Court held that the grant of bail was justified because the pendency of suits for restitution of conjugal rights and dissolution of marriage necessitated a deeper inquiry into the validity of the Nikah, which directly impacted the criminal case. The Court affirmed that where the determination of a critical fact—the validity of marriage—is sub judice in civil proceedings, the criminal case requires further inquiry, thereby justifying the grant of bail. The petition for cancellation of bail was consequently dismissed in limine.
- Does the pendency of civil suits regarding the validity of a marriage constitute a change in circumstances justifying the grant of bail in a Zina case?
- Is the grant of bail appropriate when the determination of the validity of a Nikah is sub judice in civil proceedings?
- Can a court grant bail after a previous bail application was rejected if new circumstances, such as pending civil litigation, have emerged?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
Petitioner Muhammad Nazir through the instant petition has sought for cancellation of post-arrest bail extended to the Respondent No, 1 vide the order dated 17.5.2004 recorded by Ch. Abdul Hameed, learned Addl. Sessions Judge, Khushab, in Case FIR No, 400 dated 1.11.2003 u/S. 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 registered with Police Station Jauhar Abad, District Khushab.
2. Briefly the facts relevant for the disposal of the instant petition are that the said case has been registered on the statement of the petitioner. He has alleged therein that on 1.6.2003 at about 11.30 p.m. Anwar Ali Shah (Respondent No, 1) has abducted his 13 years old daughter Mst. Surraya Parveen for zina.
3. Respondent No, 1 was arrested in the case. He applied for post-arrest bail to the Sessions Court concerned. On 26.12.2003, Mr. Muhammad Arshad Malik, learned Additional Sessions Judge, Khushab declined him the relief. He, thereafter, again applied for that relief. The same was extended to him vide the order dated 17.5.2004 recorded by Ch. Abdul Hameed, learned Addl.
Sessions Judge there.
4. The petitioner feeling himself aggrieved of the same has come to this Court with the instant petition.
5. It has been argued on his behalf that on 2612.2003 Mr. Muhammad Arshad Malik, learned Addl.
Sessions Judge, Khushab has declined the relief to Respondent No, 1 considering his case on merits from all angles including the plea raised by him of valid marriage with the alleged abductee end subsequently another learned Addl. Sessions Judge, Khushab named above on 17.5.2004 without there being any change in the facts and circumstances of the case allowed him the bail and such an approach is not approvable.
6. I have carefully considered the submissions made on his behalf and gone into the copies of the documents annexed to the petition.
7. I find that no doubt on 26.12.2003, the Respondent No, 1 was declined the relief of bail by Mr. Muhammad Arshad Malik, learned Addl. Sessions Judge, Khushab considering his case on merits including the plea raised by him of existence of valid nikah between him and the alleged abductee Mst. Surraya Parveen but the latter learned Addl. Sessions Judge there when has allowed him bail, he has kept in view the earlier order dated 26.12.2008 on his previous bail petition. He has kept in view the observation contained therein that the Nikahnama relied upon the Respondent No, 1 was neither produced before the police during the investigation nor has been verified till then.
8. It was contended before him from the side of the Respondent No, 1 that the suit for restitution of conjugal rights stood filed by him and the alleged abductee Mst. Surraya Parveen had brought the suit for dissolution of marriage against him and both the suits are pending before the competent Court.
9. Learned counsel for the petitioner has not controverted that these suits are pending. Due to the filing of these suits, the question of existence or otherwise of valid nikah between him and the alleged abductee is now before the Court. I am, thus very much clear in my mind that any verdict about the validity or otherwise of such nikah can go very deeply into the route of the criminal case against the Respondent No,
1. The fate of the same very much depend upon the determination of that question/issue. It however, can take some time.
10. Anyway, in view of the pendency of these suits, the learned Addl. Sessions Judge was right in observing that the case against the respondent No, 1 required further inquiry into his guilty. He in the above changed facts and circumstances of the case was right in allowing bail to him. He had not at all erred in the same in any manner. It was quite judicious approach to the matter before him. The order proceeded on sound reasons recognized in law. Hence, the contention raised above by the petitioner's side has been found to be without any force. The petition, thus is dismissed in limine.