2000 P Cr (PLP)

The offence against the petitioners is made under section 10(2}, Offence of Zina (Enforcement of Hudood) Ordinance VI*f 1979 and under sections 419 and 466 of the P.P.C., on account of F. I. R. No. 172, dated 3‑7‑1999, lodged at Police Station City, Sahiwal.

2. It is the case of the petitioners that they were husband and wife and the present case has been made out against them on account of the mala fide of the complainant and the police. The complainant's daughter Mst. Farida Bano was married to petitioner Rana Muhammad Ashraf, out of which Muhammad Safdar was born and when the son was hardly of 1‑1/2 years of age, strained relations developed between the parties. It is said that Mst. Jannat‑ul‑Firdous, the daughter‑in‑law of the complainant, was the cause of it. She was the wife of Ilyas, the son of the complainant. Ilyas divorced Mst. Jannat‑ul‑Firdous, the present petitioner on 3‑3‑1998. Rana Muhammad Ashraf did not like this and he divorced Mst. Farida Bano on 22‑3‑1999.

3. That after the divorce, Mst. Jannat‑ul‑Firdous started living with Rana Muhammad Ashraf. That because of their illicit relationship, an illegitimate daughter was born on 14‑12‑1998. However, to suppress this fact the said Rana Muhammad Ashraf declared Mst. Farida Bano, his former wife, as the mother of this newly born child. He, therefore, lodged the present complaint on the basis of which the F.I.R. was lodged.

4. Bail is urged on the ground that whereas according to Rana Muhammad Ashraf, the daughter born was from his divorced wife Mst. Farida Bano, while according to the complainant, she was the illegitimate child, born from Mst. Jannat‑ul‑Fidous at the time when both these petitioners Rana Muhammad Ashraf and Mst; Jannat‑ul‑Firdous were carrying on their illicit relationship by their marriage. 4‑A. The admitted position is that the accused are now married and there is no dispute about the Nikahnama, dated 1‑5‑1999 which witnesses their marriage. The birth of the daughter, dated 14‑12‑1998 is being advanced as an evidence by the complainant side against the accused about the commission of Zina. As according to the complainant, the marriage took place on 1‑5‑1999, whereas the daughter was born on 14‑12‑1998. While the story of the other side is that the daughter of petitioner Rana Muhammad Ashraf was born to his divorced wife Mst. Farida Bano and that the present complainant wanted to take revenge from both the petitioners as it is because of them that his daughter got. divorced and his son had to divorce his wife Mst. Jannat‑ul‑Firdous, one of the petitioners.

5. The Assistant Advocate‑General also assisted this Court. According to whom, this case was one of further inquiry.

6. Mst. Jannat‑ul‑Firdous was divorced by Ilyas on 3‑3‑1998 and according to the story of the complainant side, the daughter born to her on 14‑12‑1998, was an illegitimate child having been born after the divorce and on the suspicion that she was conceived because of the pre‑marriage illicit relations between the petitioners. The period of the birth of the daughter and the divorce of Mst. Jannat‑ul‑Firdous is about 9 months. The question to be seen is whether her pregnancy at the relevant time was from Rana Muhammad Ashraf or whether she was already pregnant at the time of the divorce. The second question to be seen in this case is whether the defence version about the child's mother being Mst. Farida Bano, divorced by Rana Muhammad Ashraf, is true or not.

7. Pregnancy simplicitor is not a conclusive proof about the commission of Zina. Being a serious allegation, it has to be established beyond reasonable doubt and through proper evidence in accordance with principles laid down by the Islamic Jurisprudence.

8. In this connection, we can readily take guidance from Sura‑tul‑Noor Sura XXIV of the Holy Qura'n and the following verses:‑‑ Translation: "Let no man guilty of Adultery or fornication marry Any but a woman Similarly guilty, or an Unbeliever, Nor let any but such a man Or an unbeliever Marry such a woman: To the Believers such a thing is forbidden. " Translation: "Women impure for men impure, And men impure for women impure: And women of purity . Are for men of purity, And men of purity Are for women of purity: These are not affected By what people say: For them there is forgiveness, And a provision honourable." (Translation by Abdullah Yusidf Ali)

9. Reference may also be made iii this connection to the translation of Sura‑tul‑Noor by Maulana Syed Abu‑ul‑Aala Modudi in the Tafheem‑ul‑Qura'n. The relevant passage reflected in Volume III, at page No.333, published in November, 1983, is reproduced below in extenso:‑‑ .

10. In this case, the question of maternity of child is under issue and not her paternity.

11. It may also be pointed out that Islamic Laws' Lean in favour of legitimization rather than stigmization. In this connection reference is made to the case of Manzool Hussain v. Zahoor Ahmad 1992 SCMR 1191 and the following passage from this judgment is reproducgd below in extenso:‑‑ ".Firstly, Allah in His wisdom may accept Tauba at any time; and further that there is no bar for a woman who has been a prostitute, to go through the process of Tauba and lead normal married life with a view to advance Allah's purpose. Here she chose to become her husband. See also Abdul Majid Khan v. Mst. Anwar Begum alias Anwar Bibi PLD 1989 SC

362. Second aspect ignored in this case of Muslim" (jurisprudential) well‑known rule of leaning in favour of legitimization, rather than stigmization. See Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624. "

12. Under the Mohammadan Law, as in all civilized systems of law, the child follows the bed (Firash), that is, the paternity of a child born in lawful wedlock is presumed to be in the husband of the mother without any acknowledgement or affirmation of parentage on his part and such child follows the status of the father. According to the Sunni schools, the presumption of legitimacy is so strong that in cases where a child is born after six months from the date of marriage and within two years after dissolution of the marital contract, either by the death of the husband or by divorce, a simple denial of paternity of the part of the husband would not take away the status of legitimacy from the child.

13. Legitimacy is a status which results from certain facts, whereas legitimating is a proceeding which creates a status which did not exist before. This proceeding becomes necessary where either the existence of a valid marriage cannot be expressly proved or where the child is born within six months of the marriage as stated above. In such cases, acknowledgement of legitimacy in favour of the child may be either express, or by necessary implication from the course of treatment by the man of the mother and the child, or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. Such an acknowledgement raises a presumption of a valid marriage and legitimate birth.

14. The petitioners in this case are said to be in the lock‑up since 20‑7‑1999 and they were not granted bail by the Court below. The investigation in this case is also complete.

15. Keeping in view the discussion reflected above, this Court is of the view that under the circumstances this was a case of further inquiry with respect to the guilt of the petitioners and, therefore, they are admitted to bail in the sum of Rs.25,000 each with one surety each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. The police is directed to submit the challan as early as possible so that the trial in this case may star.. N.H.Q.IM‑1224/L Bail allowed