1996 P Cr (PLP)

‑‑‑‑S.497(5)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.5/10/11/16‑‑‑Cancellation of bail‑‑‑Female accused had admitted the Nikahnama showing her marriage with her co‑accused‑‑‑Document relied upon by the complainant on the face of it showed only engagement between the parties and the Family Court, where the suit for jactitation of the female accused was pending, was the proper forum to construe that document‑‑‑In view of .the apparent import of the said, document and the opinion of the Handwriting Expert further probe into its genuineness was required‑‑‑Case against accused being one of further inquiry, application for cancellation of their bail was dismissed. Sardar Hafiz‑ur‑Rehman for Petitioner. S. Shakir Hussain Shah for Respondents. This application for cancellation of bail granted to accused‑respondents 1 to 6'has been moved by Muhammad Aslam, the complainant in case F.I.R. No.31, dated 4‑4‑1995 registered under section 5/10/11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Nathiagali. The accused‑respondents were granted bail by the Magistrate on 4‑5‑1995 and the petitioner's application for the cancellation of the bail to the accused‑respondents was declined by the Sessions Judge on 12‑6‑1995.

2. The case of the prosecution is that Banaras, son d the complainant, had contracted marriage with Mst. Shereen Bibi, accused‑respondent No.6 herein, on 8-12‑1994 and that accused‑respondents Ali Zaman, Rashid, Aurangzeb, and Muhammad Yousaf had kidnapped Mst. Shereen Bibi and facilitated her marriage with accused‑respondent Muhammad Nazir on 2‑4‑1995.

3. Learned counsel appearing for the petitioner submitted that the accused Muhammad Nazir and Mst. Shereen Bibi were clearly indulging in 'the commission of Zina as Mst. Shereen Bibi could not enter into contract of marriage in the presence of her earlier Nikah with Banaras. Referring to a number of Nikahnamas of other parties placed on the file the learned counsel argued that the reference of "Mangani" (engagement), on which reliance was placed by the learned Sessions Judge, in fact meant Nikah and not just engagement. It was also argued that credible oral evidence was available to further support the performance of Nikah between Banaras and Mst. Shereen Bibi. The learned counsel appearing for the accused respondent argued that the earlier Nikahnama, dated 8‑12‑1994 was forged in order to defeat the only Nikahnama entered into between Muhammad Nazir and Mst. Shereen Bibi and to make out. a criminal case against the accused‑respondents. Referring to the opinion of the handwriting expert who had compared the signatures of Mst. Shereen Bibi with those of her signatures appearing on the two Nikahnamas it was pointed out drat the expert could not give any definite opinion on the Nikahnama, dated 8‑12‑1994 but gave a positive opinion of her signature on Nikahnama, dated 2‑4‑1995. It was finally submitted that Mst. Shereen Bibi had also filed a suit before the Family Court for jactitation of her marriage praying that the Niakbnama, dated 8‑12‑1994 be declared as fictitious.

4. The Nikahnama, dated 2‑4‑1995 between Mst. Shereen Bibi and Muhammad Nazir had been admitted by Mst. Shereen Bibi and there is no dispute about it. In Col. 12 of the Nikahnama, dated 8‑12‑1994 which relates to the date on which the marriage has taken place, the word "Mangni" (engagement) on 8‑12‑1994 has been entered and in the Col. 13, which relates to dower Rs.20,000 is stated to have been given as "Amanat". On the face of it the document appears to be that of an engagement between the parties. Even in the Nikahnama placed on file by the petitioner for the purpose of comparison the word "Nikah" has, been used with the "engagement" whereas in the Nikahnama, dated 8‑12‑1994 the word "Nikah" is totally missing. The Family Courts where the suit for jactitation of Mst. Shereen Bibi is pending would be the proper forum to construe this document in the light of the evidence produced by the parties. In the light of the apparent meaning of the document and the opinion of non writing expert a further probe into the genuineness and the true construction of the deed, dated 8‑12‑1994 is required. The case is, therefore, of further inquiry. The Sessions Judge has, therefore, rightly declined to interfere with the bail granted by the Magistrate. Consequently the application is dismissed. N.H.Q./1992/P Petition dismissed,