2005 P Cr (PLP)

The petitioner seeks cancellation of pre-arrest bail granted to respondents Nos.1 and 2, by the learned Additional Sessions Judge, Multan vide order dated 13-8-2004 in case F.I.R. No. 10 of 2004, dated 15-1-2004 registered under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 at Police Station Basti Malook, District Multan.

2. Briefly the facts of the case are that the complainant's sister Mst. Nasreen Bibi was married with respondent No.1 Nazim Hussain about 8/9 years ago and two sons were also born out of this wedlock. In the meanwhile, respondent No.1 developed illicit liaison with respondent No.2 Mst. Saleem Akhtar. Date for marriage of respondent No.2 was fixed as 12-12-2003 but in the night between 28/29-11-2003 she was found missing and during search the P.Ws., namely, Muhammad Aslam and Ghulam Rasool disclosed to the complainant/petitioner that they had seen respondent No.2 in the company of respondent No.1 along with Muhammad Iqbal and Umar Din in a white colour car going towards Dunyapur Road, Multan. On search of house, the gold ornaments and some other articles were also found missing along with cash amounting to Rs.10,

000. The petitioner asked respondent No.1 to return Mst. Saleem Akhtar, who promised to return her back but later on he refused to do so. Hence, this case.

3. Learned counsel for the petitioner contends the during subsistence of earlier marriage of Nazim Hussain respondent No.1 with Mst. Nasreen Bibi he could not contract marriage with Mst. Saleem Akhtar respondent No.2 as bath are real sisters and Mist. Nasreen Akhtar also gave birth to a child on 25-1-2004, which falsifies the story set up by respondent No. 1 that he had divorced her in January, 2003. It is contended that both the respondents atc: guilty of immoral act, whose living together would amount to continuation of commission of Zina-bil-Raza, which offence falls within the prohibitory clause of section 497, Cr.P.C. whereas, bail before arrest has been granted to them without considering this aspect, which may be cancelled.

4. Learned counsel for respondents Nos.1 and 2 on the other hand, opposes this application on the ground that written divorce was given by Nazim Hussain respondent No.1 to Mst. Nasreen Akhtar, his first wife in January, 2003 and then he contracted second marriage with respondent No.2 with her free-.will and consent on 28-11-2003, hence no offence has been committed by the respondents and grant of bail before arrest is based on cogent reasons, which is liable to be sustained.

5. Learned State Counsel also supports the arguments of the learned counsel for the petitioner.

6. I have heard the learned counsel for the parties at some length and also gone through the impugned order as well as the documents attached with the petition. The first wife of respondent No.1 and sister of respondent No.2 is present in the Court and produces copy of birth certificate to show that she gave birth daughter, namely, Umme-Aiman on 25-1-2004 from cohabitation with respondent No.1 and it prima facie A falsified the stand set up by respondent No.1 that he had divorced his earlier wife in January, 2003. Moreover, he has only relied upon copy of divorce deed dated 14-1-2003, which even admitted by the learned counsel was never sent to the Union Council concerned as per prevalent law for reconciliation between the spouses and no certificate of effecting Talaq was got issued.

7. In the aforesaid facts and circumstances no sanctity is attached to the claim of respondent No.1 that he had divorced his first wife in January, 2003. As per allegation both respondents Nos.1 and 2 are guilty of void marriage because a person cannot contract Nikah with two real sisters at the same time. The matter required thorough probe and investigation, but the grant of pre-arrest bail to the respondents has hampered the investigation. It has been rightly argued by the learned counsel for the petitioner that at this stage remaining of the respondents with each other would amount to continuation of commission of Zina-bil-Raza with each other. The bail before arrest is meant to protect innocent persons if they are found to have been involved in a criminal case with mala fide intention or ulterior motives but in the present case respondent No.1 was brother-in-law of the petitioner and respondent No.2 is the real sister of the petitioner. Even otherwise, the conduct of respondents also disentitled them to grant of bail before arrest as both prima facie are guilty of an immoral act by deceiving the earlier wife, the real sister and C other close relatives. Hence, the order, dated 13-8-2004 passed by learned Additional Sessions Judge, Multan for grant of pre-arrest bail to the respondents is hereby set aside and the bail is cancelled. Both the respondents are present in Court, who shall be committed to custody. Application stands accepted. N.H.Q./A-522/L Pre-arrest bail cancelled.