2004 P Cr (PLP)

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑‑Bail, .grant of‑‑‑Accused according to the F.I.R. itself were lawfully married and their Nikahnama was available ‑‑‑Nikah Registrar had no authority to cancel the Nikahnama‑‑ Marriage could only be dissolved either by the husband by pronouncing divorce in the prescribed manner or by the Family Court on the application of the wife‑‑‑Allegation that the existing wife had not consented to the said marriage was only an offence under the Muslim Family Laws Ordinance, 1961, which was not cognizable by police and Court could take cognizance and proceed in the matter only upon the complaint of the existing wife‑‑‑Accused were admitted to bail in circumstances. Syed Zulfiqar Abbas Naqvi for Petitioners. Ch. Riaz Hussain for the State. On 15‑1‑2004 Lt. Muhammad Arslan complainant filed an application before D.I.‑G. Rawalpindi, stating that his father Zamurrad Pervaiz, petitioner No.1 is serving as District Registrar, Mirpur, Azad Kashmir and the petitioner No.2 who is a divorced lady had hooked him. On 5‑6‑2003, the petitioners were married without the permission of his mother whereupon the Nikah Registrar cancelled the Nikahnama. But despite the cancellation of the Nikahnama the petitioners are living together as husband and wife. He then expressed the apprehension that the lady may leave the country alongwith his father which will cause mental agitation to the members of the complainant's family. According to the police proceedings noted on this F.I.R., the application was received on 14‑1‑2004 and the D.S.P. (Legal), Rawalpindi, has opined that a case under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is made out. A case under, section 10(2) of the said Ordinance was accordingly registered vide F.I.R. No.6 dated 15‑1‑2004 at Police Station Civil Lines, District Jhelum. The petitioners were arrested. Their bail application has been dismissed by a learned Additional Sessions Judge, Jhelum, on 30‑1‑2004.

2. Learned counsel for the petitioners contends that it is in the F.I. R. itself that the petitioners are married. According to him, there is no provision under which a Nikah Registrar can cancel a Nikah. Learned counsel for the State finds it difficult to oppose this bail application.

3. I have gone through the available records. Now I have reproduced above the contents of the said F.I.R. According to the said contents the petitioners were married on 5‑6‑2003. Copy of the Nikahnama, admittedly, executed by the parties and witnesses, etc. is available. Needless to state that no Nikah Registrar has any lawful authority to cancel the Nikah. Nikah once performed between the parties can be dissolved either by the husband by pronouncing divorce in the manner prescribed or by a competent Family Court upon the application of the wife. I am told by the police official present with reference to his record that the said Nikah Khawan has made a statement later on that he did perform the Nikah. So far as the allegation that the existing wife had not consented to the said marriage is concerned, the same is not at all a subject‑matter of the said Ordinance of 1979. This is an offence constituted under the Muslim Family Laws Ordinance, 1961, which is not cognizable by police at all and it is only upon the complaint of an existing wife or wives that a Court can take cognizance and proceed in the matter. The Criminal Miscellaneous is accordingly allowed and the petitioners are granted bail subject to their furnishing of bail bonds in the sum of Rs.30,000 each with one surety, each in the like amount to the satisfaction of the learned trial Court. N.H.Q./Z‑6/L Bail allowed.