1985 P Cr (PLP)

‑‑‑Ss. 497 & 498‑‑ Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11‑‑Bail‑‑Offence of Zina‑‑Married woman?No evidence recorded by trial Court‑‑Grant of bail, held, could amount to encouraging illicit love affairs and fornication‑‑Defence plea of Nikahnama between accused, held further, could only be considered and judged by trial Court and no finding‑ could be given by High Court at bail stage. 1984 P Cr. L J 129 and 352 and P L D 1984 Lah. 67 ref. A.W. Butt for Petitioners. Muhammad Akhtar Shabbir, A.A.‑G. for the State. The petitioners have invoked the jurisdiction of this Court for the grant of bail under section 498, Cr.P.C. They have been involved in a case registered against them and others by Police Station Gunjial under the provisions of sections 10/11 of the Offence of Zina (Enforce?ment of Hudood) Ordinance, 1979.

2. According to the maker of the F.I.R., Surkhroo Khan, a Naik in Pakistan Army, his wife Mst. Gul Perveen, petitioner No.2, had disappeared from the house of his parents while he was posted at Sargodha. The disappearance of Mst. Gul Perveen, was reported to the complainant by one Muhammad Nawaz, a brother of Mst. Gul Perveen. The complainant on hearing such news returned to village to make efforts for locating the whereabouts of his wife Mst. Gul Perveen. The complainant was informed that the sister of co‑accused Mst. Sahib Khatoon, being a relation of the complainant, was on visiting terms with Mst. Gul Perveen. According to the complainant, a month before the lodging of the F.I.R. he was informed by Muhammad Hayat son of Ghulam Sarwar and another Muhammad Hayat son of Muhammad Khan, who were labourers in Karachi, that they had seen Mst. Gul Perveen with Khan Muhammad co‑accused, Muhammad lqbal and Mst. Sahib Khatoon roaming in Karachi. The complainant approached respectables' for the return of Mst. Gul Perveen and Mst. Sahib Khatoon and Muhammad Iqbal promised to arrange the return of Mst. Gul Perveen by July, 1983. According to the complainant Mst. Gul Perveen was not returned. Compelled by the aforesaid circumstances, the complainant lodged the F.I.R. with the police station, on the basis of which a case was registered.

3. On 18th of August, 1983, Mst. Gul Perveen was recovered from the house of co‑accused Muhammad Khan from Karachi and consequently the petitioners were arrested.

4. The petitioners claim to be husband and wife and in support of their claim they have produced a 'Nikahnama'. On the other hand, the complainant has also produced a 'Nikahnama' which is prior in time to that of the petitioners. Allegedly the Nikah between complainant and Gul Perveen was performed by one Muhammad Nawaz, maternal‑uncle of Mst. Gul Perveen, a Lambardar and Imam of the village mosque and he affirmed this fact before the Sessions Judge. The complainant further produced a certificate issued by the Army Authorities, and in the said certificate it was certified that on the basis of the information lodged with the Army Authorities based on 'Nikahnama' as well, Mst. Gul Perveen was lawfully wedded wife of the complainant and on the aforesaid basis residential abode had been allotted in favour of the complainant.

5. The learned counsel for the petitioners drew my attention to a civil suit allegedly filed by Mst. Gul Perveen for jactitation of marriage against the complainant, and also to the contents of the statement of Gul Perveen recorded under section 164, Cr.P.C. in which she disowned her marriage with the complainant, and had asserted that she was the lawfully‑wedded wife of the co‑accused Muhammad Khan.

6. Keeping in view the peculiar circumstances of the case, I was anxious to know about the future abode of Mst. Gul Perveen in case of her release on bail, because, in the event of the truthfulness of the claim of the complainant, I could not have allowed the perpetuation of illegal fornication. Led by this consideration I sent for the father of Mst. Gul Perveen, who has appeared before me and has declined to stand surety for his daughter Mst. Gul Perveen. According to the father, the petitioner Gul Perveen was lawfully‑weded wife of the complainant.

7. The learned counsel for the petitioners contended before me that it was a case of further inquiry within the meaning of section 497 (2), Cr.P.C. and, therefore, the petitioners were entitled to bail. In support of his contention he relied upon a judgment of this Court reported as Shahnaz Iqbal Adil v. State 1982 P Cr. L J 1231. In this cited case a woman seeking pre‑arrest bail was charged for marrying another person during the existence of first marriage. The woman had disputed her Nikah and had also denied her signatures on Nikahnama and a suit for jactitation of marriage had been filed and this Court admitted Mst. Shahnaz Iqbal to bail holding that the case fell within the purview of further inquiry clause of section 497, Cr.P.C. Respect?fully I would differ with the ratio of the case, because, the concept of further inquiry has to rest upon a solid foundation and merely, because another Nikahnama has been prepared and a suit for jactitation of marriage has been instituted, would not in every case, be covered by the provisions governing the grant of bail in cases calling for further inquiry. I am conscious of the fact that in exercise of the jurisdiction for the grant or refusal of bail, I cannot go into the merits of the case and to give a finding, thereon, and the scope of the exercise of such powers extends only to find out prima facie case, to ascertain whether reasonable grounds exist to believe that the petitioners are not guilty of an offence punishable in the nature provided for in subsection (1) of section 497, Cr.P.C. After anxious consideration I ‑have come to the conclusion that the case also falls within the prohibitory) clause of section 497, Cr.P.C. I cannot be oblivious of the social and moral environments, prevailing in the community for which law is to be administered. Enforcement of Zina (Hudood) Ordinance was promulgated keeping in view the age‑old tradition and the moral values enunciated by Islam.

8. Without expressing any opinion on the merits of the case lest it may prejudice the case of either party, I am of the view that no prima facie case for the grant of bail on the basis of further inquiry concept is made out. Because, on sheer pretext of another Nikahnama, the present case would not fall within the scope of further inquiry clause. This Court does not function in vacuum while exercising jurisdiction in respect of the grant or refusal of bail, and I am bound to take note of social or moral environments prevailing in the society, therefore, in my view, at this stage, when as yet no evidence has been recorded by the trial Court the grant of bail would amount to encouraging illicit love affair and fornication. Furthermore, the defence plea of Nikah between the petitioners can only be considered and judged by the trial Court. I cannot give any finding at this stage.

9. The learned counsel for the petitioners also invited my attention to the fact that in the Nikahnama of Mst. Gul Perveen with the complainant district Khushab has been written, whereas, on the relevant day in the year 1981, Khushab had not become a district. I am afraid. I cannot hold any inquiry nor I can give any finding. Suffice it would be to refer to the statement of Muhammad Nawaz, who had performed the Nikah ceremony.

10. In support of his arguments the learned counsel also placed reliance on two cases reported in 1984 P Cr. L d 129 and 352 and also P L D 1984 Lab.

67. The facts in all these cases are distinguishable, and thus, do not help the petitioners at all. The challan, in this case, has been submitted. I would, therefore, direct the learned trial Judge to proceed with the trial expeditiously on day to day basis.

11. However, the refusal to grant of bail to the petitioners on account of reasons stated above would not be a bar for the trial Court to grant bail, if after recording some evidence, the learned trial Court feels that the bail should be granted.

12. With these observations this petition is dismissed. ?? M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????? Bail not allowed.