1997 P Cr (PLP)

Through this criminal miscellaneous petition, Falak Sher son of Sadiq Wattoo of Chak No.597/G.B., District Faisalabad seeks cancellation of bail allowed to respondents Nos. l to 3 by the learned Additional Sessions Judge, in case F.I.R. No.56 of 1997 registered at Police Station Bahlak, under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, vide his order dated 15-4-1997

2. The facts of the case, relevant to the disposal of this petition, briefly, are that Falak Sher, complainant, lodged the F.I.R. with Bahlak Police on 9-3-1997 that on 5-3-1997 at about 5-00 a.m. his daughter Mst. Rani, wife of Naik Muhammad, was seduced by the accused named therein for illicit intercourse. She was not returned by the accused despite repeated requests by the complainant and consequently the case was registered at his instance.

3. Learned Additional Sessions Judge, Faisalabad allowed pre-arrest bail to respondents Nos.1 to 3, in the first instance, and then confirmed the same vide his aforesaid orders, chiefly, on the ground that although there were two Nikahnamas, one between Mst. Rani and Naik Muhammad and the other showing her marriage with Sadan accused, nevertheless, his examination in the Court revealed that the Nikahnama relied upon by the complainant was subsequent in time and was forged whereas Nikahnama between Mst. Rani and Sadan was the correct and proper document. The learned Judge also referred to the statements of the accused made before him that they were living as husband and wife since after their marriage. The learned Judge concluded that this showed that she had married with Sadan and not with Naik Muhammad as claimed by her father. In this view of the matter, he confirmed the bails of the accused.

4. It is submitted by learned counsel for the petitioner that the, impugned order is not merely arbitrary but offends against all canons of fairplay, justice and the rules of criminal law; that the learned Judge instead of leaving the matter, in the given circumstances, to the appropriate Court for determination, himself assumed the jurisdiction and allowed them bails on extraneous considerations; that in such like cases, Supreme Court has held, times without number, that the matter should be left to be adjudicated by the Family Court and ought not to be disposed of by the Criminal Court in bail matter; that the learned Judge has virtually decided the entire case by giving a definite opinion about the validity of marriage of Mst. Rani with Sadan on the basis of statements of the accused themselves; that grave miscarriage of justice has taken place and if ultimately the Family Court decides that marriage of Mst. Rani with Naik Muhammad is prior in time, then subsequent relations of Mst. Rani with Sadan will be a sheer adulterious intercourse sanctioned by the learned Judge; that the investigation of the case is still in progress and on account of the unwarranted concession given by the Court, the accused are not allowing the Investigating Officer to come to a logical conclusion. Their bails, therefore, merit to be cancelled so that the case may be investigated properly on correct lines.

5. Learned counsel for the respondents, however, argued that the order is perfectly valid in law and this is what happens in the villages that when a girl elopes with her paramour, the parents invariably concoct a Nikahnama showing marriage of the girl with someone prior in time and this actually has been done in this case, as such, the learned Court below was justified in allowing bails to the respondents.

6. Arguments have been heard and record perused. There was a clear factual controversy involved in the matter, which could be resolved by leading evidence before the Court of competent jurisdiction. Reference in this behalf can be made to Shahida Parveen v. District Judge, Sialkot and another PLD 1980 Lah. 7 wherein it has been held that the best course, in such an event, was to leave the question of validity of marriage to be decided by the Court having jurisdiction in the matter as recording of evidence in the High Court is likely to prejudice the case of either party and would create complications in the lower Court.

7. In a similar situation their Lordships of the Supreme Court in Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR 398 held that if a habeas corpus petition is filed for furthering illicit love affairs and avoiding criminal prosecution for kidnapping/abduction of a woman, the relief under section 491, Cr.P.C. is justifiably refused. The exact wordings of their Lordships are as under:-- "We are also inclined to agree with the views expressed by the learned Judge regarding the tendency to abuse the provisions of section 491 of Cr.P.C. on the part of some young men in furtherance of their illicit love affairs. Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in .the community for which the law is to be administered. Such being the case the High Court was justified in refusing relief it came to the conclusion that the petition had been presented for the sake of furthering an illicit love affair and avoiding criminal prosecution in connection with the kidnapping/abduction of the woman in question. "

8. It appears relevant to point out here that the Courts should specifically keep in mind that this State is being governed by the Constitution of Islamic Republic of Pakistan, 1973 and in the presence of Article 1 wherein the name of the State is Islamic Republic of Pakistan, Article 2 which ensures that Islam shall be the State religion and then Article 2A that makes the Objectives Resolution as substantive part of the Constitution, no ~ interpretation which promotes immorality and advances vices is competent. Moreover, Article 31 enjoins upon the Government that "steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the Fundamental Principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah". It is, therefore, clear that any interpretation which militates against the teachings of Islam, cannot be accepted. Articles 227 to 230 of the Constitution also would show that what can be the purpose and policy of the State for which this country came into being. Any interpretation of law, which runs counter to these substantive provisions of Constitution would tantamount to frustration of the very purpose of the framing of the Constitution of an ideological country like Pakistan.

9. Now in this case the girl was either abducted or she eloped when she was already married as per record, for fostering illicit relations. They remained together for a considerable time and then allegedly entered into marriage much later. Even if the earlier marriage is not proved, how a young marriageable girl can live with a young man not within prohibitory degree. Although there is no specific provisions, nevertheless, in view the Constitutional provisions referred to above, no Court can justifiably permit such a relation. In this view of the matter, it appears that the learned Judge has travelled beyond his limits while granting pre-arrest bails to the accused and. then confirming the' same on whimsical and false grounds. The bails allowed to Sadan and Mst. Rani are, therefore, hereby recalled and they shall be taken into custody. However, the bail allowed to Noor Muhammad accused, in the given circumstances, is not being cancelled. He shall continue to join the investigation as and when required by the Investigating Officer. The police shall thoroughly investigate the case and shall conclude it within a period of two months, failing which the respondents shall be at liberty to move afresh for their bails before the competent Court. N.H.Q./F-31/L ' Bail cancelled.