2005 PLP 1336 (MLD)

Noor Muhammad son of Karim Bakhsh reported an occurrence which allegedly had taken place, under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 to Police Station Abbas Nagar, which was recorded by the aforesaid Police Officer through F.I.R. No.266 of 2003. According to the facts narrated in the F.I.R., Mst. Nazir Mai daughter of Ghulam Haider was married to Noor Muhammad complainant and on 8-11-2003 when her brother Allah Dewaya had taken her for picking of cotton, at about 11-00 a.m., she was abducted by Mushtaq Ahmad, Muhammad Ishaq, Muhammad Yaseen, Muhammad Amin and two unknown persons.

2. Mst. Nazir Mai, petitioner has filed this instant pre-arrest bail application after having remained unsuccessful to get the concession of bail from the leaned Additional Sessions Judge, Bahawalpur on 28-2-2004. Learned counsel appearing on behalf of the petitioner submits that the story as narrated in the F.I.R. was not corroborated by any recovery of motorcycle or pistol from Mushtaq Ahmed as alleged therein by the informant. It has further been argued that Mst. Nazir Mai was in fact married to Mushtaq Ahmad who had earlier filed a suit for restitution of conjugal rights, which was decreed on 11-11-2003 by the learned Judge, Family Court, Bahawalpur. She has also filed a suit for jactitiation of marriage against the aforesaid Noor Muhammad, informant, in which she had denied the factum and existence of the alleged marriage solemnized on 15-7-2003. According to the learned counsel, this is a dispute where two parties are claiming the marriage with Mst. Nazir. Mst. Nazir Mai has approached the competent Court through suit for jactitation of marriage, therefore, she be granted pre-arrest bail. Being woman, she is also entitled to the concession of bail.

3. Opposing the arguments of the learned counsel for the petitioner, it has been argued by the learned counsel appearing on behalf of Noor Muhammad, informant that Mst. Nazir Mai earlier had made a statement before the learned Additional Sessions Judge on 27-10-2003, in which she had admitted the factum of Nikah with Noor Muhammad and had denied the existence of the alleged Nikah with Mushtaq Ahmad.

4. To explain further, the learned counsel has stated that Mushtaq Ahmad co-accused of Mst. Nazir Mai was not granted bail on 15-1-2003 by the learned Additional Sessions Judge, Bahawalpur. So, the rule of consistency requires that she should also not be granted bail concession. According to the learned counsel, an F.I.R. No.249 of 2003 has also been lodged under sections 429/468 and 471, P.P.C., with they police with regard to preparation of forged documents. It has been argued by the learned counsel that the decree for restitution of conjugal rights was got passed in the absence of Noor Muhammad by Mushtaq Ahmed. The said Noor Muhammad has challenged it and the operation of same has been suspended by the Court. Mst. Nazir Mai had already filed pre-arrest bail before the learned Additional Sessions Judge, which was dismissed in default on 15-1-2004 as she had not appeared. According to the learned counsel, Mst. Nazir Mai was arrested on 28-2-2004 by Mahmood Ahmad A.S.-I. but she was got released forcibly from the custody of the police by persons accused of F.I.R. No.51 of 2003 which was got registered on 28-2-2004 by Mehmood Ahmad A.S.-I., therefore, the petitioner is not entitled to the concession of bail. Learned counsel for the State has also supported the arguments advanced by the learned counsel for the complainant.

5. I have heard the learned counsel appearing on behalf of the parties and have perused the record and found that Mst. Nazir Mai is being claimed as wife by two persons Noor Muhammad through Nikahnama dated 15-7-2003 while Mushtaq Ahmad claims his wife on the basis of Nikahnama dated 27-3-2003. At present, Mst. Nazir Mai is refuting the marriage of Noor Muhammad while owning her marriage with Mushtaq Ahmad. There is no cavil to the proposition that to decide the existence of marriage or to grant declaration regarding the validity of Nikah and who is the spouse of whom, powers lies with the Family Court which has got the jurisdiction and is competent to decide which of the Nikahnama is genuine and correct. Suit for jactitation of marriage field by Mst. Nazir Mai on 25-11-2003 is admittedly pending in the Court of the learned Judge, Family Court, Bahawalpur. In my opinion, the decision of this suit would decide the fate of the criminal proceedings as to whether Noor Muhammad or Mushtaq Ahmad could be claimed as bridegroom of the bride. It is also settled rule of criminal jurisprudence that a person is presumed innocent until proved otherwise. The petitioner who is a lady is pursuing with the suit for jactitation of marriage filed by her in the learned Family Court and if the bail petition is disallowed, it will affect the case of the petitioner as she would not be having full-fledged opportunity to follow the pursuit of that case. Therefore, under these circumstances, I consider it a fit case for confirmation of pre-arrest bail already granted to the petitioner. However, if the suit for jactitation of marriage is decided against the petitioner, the learned competent Court of criminal jurisdiction would have authority to cancel the bail if thinks it proper. I have knowingly refrained myself to give any findings upon the existence and non-existence of the marriage of the parties lest it may prejudice the case of the parties.

5. With these observations, the bail petition is disposed of and the pre-arrest bail already granted to the petitioner is confirmed. The bail bonds which was submitted by the petitioner at the time of grant of ad-interim pre-arrest bail shall remain effective till the final decision of the case. H.B.T./M-41/L Bail confirmed.