2007 PLP 3169 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

The petitioner who is accused in case F.I.R. No. 21, dated 11-4-2004 under sections 13, 14, 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, Police Station Shahwali, District Rajanpur, seeks post arrest bail in the said case.

2. It is argued by learned counsel for the petitioner that petitioner was arrested on 28-7-2005, whereas the alleged abductee Mst. Waziran is his legally wedded wife who contracted marriage with the petitioner in .the year 1996 and out of the said wedlock two children were also born and that a decree for jactitation of marriage was also passed by learned Judge Family Court on 12-6-2006 holding that Mst. Waziran was divorced by Muhammad Umar complainant about ten years back. It is further submitted by learned counsel .for the .petitioner that although Mst. Waziran was also booked under section 10(2) of the said Ordinance yet she was allowed bail and co-accused of petitioner namely Mouj Din was also allowed bail by this Court on 29-5-2006. It is further argued that despite absence of any allegation of zinc against him, the petitioner was arrested in the said case without prior permission of the concerned Court in terms of section 156-B, Cr.P.C., therefore, petitioner is entitled to grant of bail in view of the law declared by this Court in 2005 YLR 1634.

3. On the other hand, learned counsel for the complainant as well as State have opposed this petition by arguing the petitioner and Mst. Waziran committed Zina-bil-Raza knowingly that Mst. Waziran was legally wedded wife of the complainant and that the decree for jactitation of marriage was obtained ten years after the alleged Nikah of the petitioner with said Mst. Waziran.

4. I have considered the arguments of learned for the parties and perused the record.

5. Admittedly, Mst. Waziran and Mouj Din- co-accused have been released on bail. It was observed by my learned brother (Late) Nazir Ahmad Siddiqui, J. in the order dated 29-5-2006 passed in Crl. Misc. No.1404-B/2006 that Mst. Waziran got her, statement recorded .under section 161, Cr.P.C. in which she never levelled any allegation of zina against any person. Further Mst. Waziran is admittedly living with the petitioner as his legally wedded wife after contracting marriage since 1996 and Nikah Nama was also got registered in Union Council Tehsil Sadiqabad Deh and the complainant never bothered to find out the whereabouts of Mst. Waziran nor made any effort for getting her recovered. .Admittedly the petitioner was arrested without prior permission of the. Magistrate in violation of mandatory provisions of Section 156-B, Cr.P.C. The' petitioner is behind the bars since 28-7-2005 and question whether Mst. Waziran is his legally wedded wife, is .yet to be determined after recording of evidence. This application is allowed and petitioner is allowed bail subject to his furnishing bail bond in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned Trial Court. H.B.T./M-431/L Bail granted.