P L D 2002 Lahore 187 (PLP)

Muhammad Akram Gondal for Petitioner. Qazi Zafar Iqbal for the State. Aisha alias Nasim the petitioner seeks after-arrest bail in case F.I.R. No. 156 of 2001 dated 20-3-2001, under sections 10(2)/16 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), registered with Police Station Mughalpura, Lahore. Briefly facts of the case are that the petitioner who was married with Pitras Masih complainant eloped with her co-accused Nadim Masih and now after embracing Islam his name is Muhammad Abdullah. She entered into Nikah with him on 31-3-2001. Pitras Masih her previous husband got registered the instant case with the allegation that she was his legally wedded wife and has eloped with the co-accused and is living with him without dissolution of the previous marriage with him and they are committing Zina with each other. The bail petition was refused by the learned Additional Sessions Judge vide order dated 6-8-2001. Hence this petition. Learned counsel for the petitioner contends that after embracing Islam the earlier marriage with non-Muslim comes to an end forthwith and thereafter she was free to contract another marriage. When the learned counsel for the petitioner was confronted with law laid down by this Court in 1997 MLD 158 that the marriage does not come to an end automatically. She had to appear before the Qazi/Court and offer to her previous husband, if he wanted to embrace Islam and he refuses thereafter the marriage is to be dissolved by the Court. She is also obliged to observe Iddat to avoid any complication regarding the pregnancy or legitimacy of the child and the matrimonial right does not terminate automatically. It has been further argued that the petitioner is not educated and she has not committed any offence wilfully as according to her knowledge the marriage has been terminated after her embracing Islam and she has validly contracted second marriage she is confined in judicial lock-up since 1-6-2001 and being female, she is entitled for concession of bail. The challan of the case has already been submitted in Court but the trial has not yet commenced. Learned counsel for the State does not oppose the contentions raised by the learned counsel for the petitioner and has also endorsed the same views. Heard. Record perused. I do not agree with the contentions raised by the learned counsel for the petitioner and endorsed by the learned counsel for the State that the petitioner's marriage with her previous non-Muslim husband stands dissolved automatically by her embracing Islam. Ip an elaborate judgment reported in, 1997 MLD 158 titled Mst. Safia Bibi v. Muhammad Arif, A.-S.I. and 3 , others, after considering all the aspects of the case; it has been concluded, that if a married non-Muslim woman embraces Islam, she must inform her husband of the conversion and the husband may either embrace Islam within a period of Iddat and in that case the marriage will continue and if he remains, non-Muslim even after expiry of Iddat period, the marriage would stand dissolved. Even in that case she has to apply to the Family Court for dissolution of marriage on this ground and the Court will summon her husband and inform him about the conversion of his wife and if he does not embrace Islam within Iddat period, the Court can declare marriage dissolved. The woman will of then be entitled to enter into second marriage with a Muslim man and this procedure must be adopted to preclude the possibility of exploitation of religion merely for purpose of satisfying sexual desire without any regards for one's family responsibility, to observe Iddat period is also compulsory to avoid the possibility of pregnancy and the controversy of paternity of the child. In section 20, subsection (4), Chapter 2 of Principles of Muhammadan Law by D.F. Mulla Muhammadanism distinction has been drawn as (1) in a country subject to Muslim Law, and (2) in a country where the Law of Islam is not the law of the land. It has been provided that in the first case, when one of the parties embraces Islam, he or she should offer Islam to the other spouse, and if the latter refuses the marriage can be dissolved. In the second case, the marriage is automatically dissolved after the lapse of a period of three months after the adoption of Islam by one of the spouses. The case of the petitioner falls in the 1st proviso. Therefore, the stand taken by learned counsel for the parties is not correct. However, in the instant case, the alleged occurrence took place between night 2/3-3-2001 and F.I.R. was got recorded by Pitras Masih, husband of the petitioner on 20-3-2001 and according to the petitioner she alongwith her co-accused embraced Islam on 31-3-2001 and entered into Nikah with co-accused on the same day through Nikah Name without waiting for the Iddat period to expire. The petitioner is in judicial lock-up for last more than 7 months and she is not pregnant and according to section 4 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), a man and a woman is guilty of commission of Zina if they wilfully have sexual intercourse without being validly married to each other. The case of the petitioner is that she is validly married. She being uneducated, the procedure to be adopted as discussed above was not known to her and there is no mens rea for commission of Zina which brings the case of the petitioner for further inquiry and she being female her case is also covered under provison (2) of section 497 of Cr.P.C. therefore, I am persuaded to admit the petitioner to bail subject to her furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court. H.B.T./A-400/L?????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.