2009 P Cr (PLP)

This order shall dispose of Criminal Miscellaneous No.367/BC of 2006 titled "Talib Hussain v. Tariq Mehmood" as well as Criminal Miscellaneous No.314/BC of 2006 tilled "Talib Hussain v. Mst. Yasmin Ara and others" as both these petitions arise from the same F.I.R. i.e. F.I.R. No.588, dated 29-10-2005 under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Wah Cantt. Tehsil Taxila District Rawalpindi.

2. On 28-5-2007, a short order was announced in which former application was ordered to be allowed, consequently, the bail granting order dated 23-1-2006 passed by the Additional Sessions Judge, Taxila in favour of Tariq Mehmood respondent was withdrawn, whereas the latter application was dismissed. Following are the detailed reasons for passing the aforesaid short order.

3. Through Criminal Miscellaneous No.367/BC of 2006 Talib Hussain complainant, the real father of Mst. Yasmeen Ara and father-in-law of Tariq Mchmood respondents seeks cancellation of bail after arrest granted to Tariq Mehmood respondent through order, dated 23-1-2006 passed by the learned Additional Sessions Judge, Taxila as well as bail before arrest granted by the same learned Judge through order, dated 10-12-2005 to Mst. Yasmin Ara respondent/accused.

4. It is pertinent to mention here that learned Additional Sessions Judge, Taxila without adverting to the pivotal question regarding prohibition of keeping of two real sister in Nikah by a male Muslim adult at the same time as enshrined in Verse No.23 of Surah IV i.e. Suratun Nisa of the Holy Qur'an allowed bail to Tariq Mehmood respondent through a non-speaking order written in Urdu which reads as under:-

5. The prosecution case is that on 19-10-2005, during the morning time, Tariq Mehmood, the son-in-law of the complainant abducted Mst. Yasmin Ara, the real daughter of the complainant for the purpose of committing Zina. At that time, gold ornaments valuing Rs. 1,00,000 were also taken away. They were last-seen at Bus Stop Ahmad Nagar. In these circumstances the present case was registered at Police Station Wah Cantt. on 29-10-2005.

6. Learned counsel for the petitioner contends that Tariq Mehmood respondent firstly, contracted marriage with Mst. Fauzia Ara, who was the real sister of Mst. Yasmeen Ara and out of wedlock children were born. During subsisting of said marriage, Tariq Mehmood respondent-accused on 20-10-2005 also contracted another marriage/Nikah with co-accused Mst. Yasmeen Ara at Multan. On the mandate of Verse No.23 of Surah-IV i.e. Suratun Nisa of the Holy Qur'an learned counsel contends that the second Nikah/marriage of respondent Tariq Mehmood with Mst. Yasmin Ara is void because a male Muslim adult cannot keep two real sisters in his Nikah as wives at the same time. Further that if marriage is allowed to be subsisted it would amount to continuation of Zina-bil-Raza by the couple. The learned Additional Sessions Judge had no jurisdiction to grant bail after arrest to Tariq Mehmood respondent and bail before arrest in favour of Mst. Yasmeen Ara because there was no mala fide, ulterior motives on the part of the father/complainant to implicate his real daughter and son-in law in a false case.

7. Conversely, learned counsel for respondent contends that Fauzia Ara the daughter of Talib Hussain and elder sister of Yasmin Ara was divorced by Tariq Mehmood on 20-10 2005 in presence of witnesses. By referring to section 7(3) of the Muslim Family Law Ordinance (VII of 1961) learned counsel contends that Tallaq pronounced thrice in one sitting become effective immediately and in such eventuality, the question of its revocation does not arise. Learned counsel also while relying on section 223 of D.F. Mulla's Muhammaden Law contends that after divorcing the first wife (one sister) and marrying the other sister of the ex-wife under the Muslim Family Laws is not void but irregular and issue in such an eventuality would be legitimate. Reliance has been placed on the case of Muhammad Nawaz v. The State PLD 2004 Lah.

365. Further that it cannot be said that the couple was committing Zina with each other; second marriage of the accused would become valid on his divorcing the first wife whom he had already claimed to have divorced after completing Iddat period, therefore, the couple have committed no offence.

8. Further, the learned counsel for the respondents has also placed reliance on the Laboratory Report dated 21-5-2007 indicating pregnancy test conducted on urine sample of accused lady to he as positive. According to the learned counsel, the said lady is having conception of four months, therefore, her bail may not be cancelled. Further contends that considerations for grant of bail and considerations for cancellation of bail are altogether different. Once an accused person has been released on bail, his liberty cannot be interfered with lightly and bail granted by a Court of competent authority can be cancelled when strong and exceptional grounds would be required for cancellation of the bail thereof.

9. We have heard the arguments of the learned counsel for the parties and perused the record with their assistance.

10. There is no cavil with the proposition that considerations for grant of bail and considerations for cancellation of the bail are absolutely different. Once an accused person is released on bail his liberty cannot be interfered with lightly. And once a bail is granted by a Court of competent authority then strong and exceptional grounds would he required for cancellation thereof. Reliance is placed on the case of Bashir Ahmed v. Mirza Muhammad Yaqoob and 10 others 1991 MLD 579.

11. Now coming to the admitted position available on the record that Tariq Mehmood respondent was married with Mst. Fauzia Ara, the other daughter of the complainant and from the wedlock, five daughters were horn. The prosecution case is that on 19-10-2005, during the morning time, Tariq Mehmood, the son-in-law of the complainant abducted Mst. Yasmin Ara, the real daughter of the complainant for the purpose of committing Zina. The divorce deed placed on the record is dated 20-10-2005, attested by the Oath Commissioner at Multan on 21-10-2005. Said Nikah of Tariq Mehmood with Yasmin Ara was solemnized on 20-10-2005. No notice as required under section 7(1) of the Muslim Family Law Ordinance (VII of 1961) was sent to the Chairman or Mst. Fauzia Ara. Therefore, it is premature to comment upon the effectiveness of Talaq pronounced at Multan on 20-10-2005 when the allegation in the F.I.R. is that Mst. Mst. Yasmeen was abducted by Tariq Mehmood on 19-10-2005. The question whether a person can contract a second marriage with real sister of his wife, who is still in his Nikah and that consummation of said marriage would snake them guilty of offence falling within the ambit of section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, No.VII of 1979.

12. Learned counsel for the respondents has relied on the case cited as Muhammad Nawaz v. The State PLD 2004 Lah. 365 wherein in the similar circumstances, bail had been granted to the male accused by this Court by his Lordship Sheikh Abdul Rashid as he then was with the observation that:

"Even if, the prosecution case is admitted that the first wife had not been divorced in accordance with law and the first Nikah is still subsisting, the contract of subsequent Nikah with younger sister of first wife will only amount to an irregular marriage. The section 242 of Principles of Mahommedan Law by D.F. Mulla stipulates that the marriage may be valid (Sahih), or irregular (Fasid) or void (Batil) from the beginning. Section 253 lays distinction between void and irregular marriage." In the case (supra) the question was that whether the marriage of the male accused with the lady co-accused was irregular and issue of that marriage would be legitimate? In this regard we cannot agree with the conclusion arrived at by his Lordship in the judgment referred to above for the simple reason that Verse No.23 of Surah-IV i.e. Suratun Nisa of the Holy Qur'an has not been taken note of or has not been considered while delivering the above stated judgment. The English Translation of Verse No.23 of Surah Al-Nisa (Holy Qur'an) reads as under:

"

23. Prohibited to you (for marriage) are:

Your mothers, daughters, sisters, father's sisters, Mother's sisters; brother's daughters, sister's daughters, foster mothers (who gave you suck), foster sisters, your wives' mothers; Your step-daughters under your guardianship born of your wives To whom ye have gone in,

No prohibition if ye have not gone in;

(Those who have been) Wives of your sons proceeding from your loins; And two sisters in wedlock at one and the same time, Except for what is past; For Allah is oft-Forgiving, Most Merciful;

Under section 263 of Principles of Muhammadan Law by D.F. Mulla, under heading Unlawful Conjunction we find that following definition has been made:

"A man may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage, that if either of them had been a male, they could not have lawfully intermarried as for instance two sisters, or aunt and niece. The bar of unlawful conjunction renders a marriage irregular, not void."

13. Verse No.23 of Surah Al-Nisa of the Holy Qur'an and the relevant provisions of D.F. Mulla's Muhammaden Law and opinions of other scholars of the Islamic Jurisprudence also came for consideration before this Court in a case of bail in the Offence of Zina (E.O.H.) Ordinance, 1979 in the case reported as Asma Bibi v. Superintendent of Police, Gujranwala and 8 others 2003 PCr.LJ

372. In the said case Mst. Asma Bibi who was the real niece of Mst. Azra Bibi who was still in the Nikah of Muhammad Arif, respondent No.4, made a prayer for quashment of the F.I.R. on the ground that she was neither abducted or subjected to Zina-bil-Jabr. She had contracted marriage with Muhammad Arif, her real uncle, with her free will and consent during subsistence of the marriage of her aunt (sic) and resultantly, petition for quashment of F.I.R. was declined. In the case reported in the case of Akbar Ali v. Nazirn Hussain and 2 others 2005 PCr.LJ 1816 the bail granted to accused was cancelled by this Court by observing that:

"both the accused respondents were guilty of solemnizing a void marriage because a Muslim male adult cannot have two real sisters as wives at the same time."

14. The question of marriage/Nikah of accused being sui juris with their free will and right of marriage having been protected by the Constitution and divorce ha become effective at the time of its pronouncement or not? has been interpreted by this Court in the case of Mst. Irfana Faiz and another v. The State and 2 others 2006 PCr.LJ 199 and it has been held that divorce before the expiry of "Iddat" period was not effective. It was observed that accused in the present case, having married the lady (accused) who stood within the prohibited degree before the expiry of Iddat period, such marriage could not be legalized.

15. On the basis of above, we have observed that the Talaknvna, dated 20-10-2005 and the Nikahnama has to be examined by the competent Court of law. From the contents of the F.I.R. and other material collected during the investigation, there are reasonable grounds to believe that the respondents are guilty of the offence with which they have been charged for and there are no grounds of further inquiry into their guilt. The learned Additional Sessions Judge vide order, dated 23-1-2006 could have not released Tariq Mehmood respondent on bail C without reaching to the conclusion after perusing the material before him that there are no grounds to believe that the accused is guilty of a non bailable offence and in absence of these facts there was no occasion fur the Court to hold that the case is one of further inquiry. Reference can be made to the case of Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765. "Through a non speaking order written in Urdu the Court did not observe that the case against Tariq Mehmood is of further inquiry.

16. Now coining to the hail granting order of Mst. Yasmin Ara. She equally was not entitled for the bail for the aforesaid reasons. Besides, it is well-settled law that arrest of ulterior motive such as humiliation and unjustified harassment is valid consideration for grant of pre-arrest hail. Reliance is placed on the case of Dr. Muhammad Shoaib Suddle, D.I.-G. Police Karachi and others v. The State 1997 SCMR 1234, Murad Khan v. Fatal e-Suhhan and another PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192.

17. We find that according to Laboratory report dated 21-5-2007 of Mst. Yasmin Ara her pregnancy test is positive and she is stated to be pregnant by four months. In the case of Mst. Nusrat v. The State 1996 SCMR 973 it has been observed that the Holy Prophet Muhammad (p.b.u.h.) in the famous case of "Ghamidiyyah" had suspended the sentence of pregnant woman not only till delivery of the child, but also postponed it till suckling period i.e. two years obviously for the welfare of the child which shows that the paramount importance and significance of the right of a suckling child in Islam and the unprecedented care taken of and the protection given to a child born or expected to be born by Holy Prophet Muhammad (p.b.u.h.) and this golden principle of administration of justice must be strictly observed and followed in the country. Ad interim hail consequently was allowed to the accused. In the' case in hand, though the respondent lady was not entitled for the bail, but following the guidelines given in the case of Mst. Nusrat (supra) we are not inclined to cancel the pre-arrest bail gnarled to Mst. Yasmin Ara.

18. For what has been discussed above Criminal Miscellaneous No.367/BC of 2006 is allowed. Consequently, bail granting order, dated 23-I-2006 is withdrawn. Whereas Criminal Miscellaneous Application No.314/BC of 2006 is hereby dismissed. H. B.T./T-16/L Order accordingly.