2005 PLP 2731 (YLR)

Muhammad Siddique petitioner seeks bail after arrest in case F.I.R. No.169 of 2004 under sections 10(3) and 16 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered on 6-9-2004 at Police Station Head Rajkan, District Bahawalpur.

2. According to the averments of the F.I.R. the petitioner is a witness of alleged Nikah between Mst. Bakhto Mai (now Ghulam Fatima) with Jan Muhammad, whereas Mst. Bakhto Mai being a Hindu lady was already married with her Hindu husband Ajmal Ram.

3. It is contended by the learned counsel for the petitioner that Mst. Bakhto Mai with her free-will embraced Islam and contracted marriage with Jan Muhammad and by becoming a witness to the said Nikah, the petitioner has committed no offence. He has further argued that Mst. Bakhto Mai had also filed Writ Petition No.371 of 2004 in this Court claiming that she having embraced Islam with her free-will contracted marriage with Jan Muhammad, a Muslim, as the same was not taken in good taste by her relatives, hence, the S.H.O. of the area at the instance of her relatives was causing harassment by summoning her at the Police Station and this Court had disposed of the said writ petition by directing her to approach the Justice of Peace for redressal of her grievance under section 22-A Cr.P.C. It is further stated by the learned counsel that in the said Writ petition, Mst. Bakhto (Ghulam Fatima) never alleged that she was either abducted or that she was subjected to Zina. It is next argued that petitioner is behind the bars since 13-9-2004; that he is not nominated in the FIR and that Mst. Ghulam Fatima besides having been behind the bars since 13-.9-2004 has not denied her Nikah with Jan Muhammad. It is lastly contended that Mst. Ghulam Fatima was recovered from Jan Muhammad and not from the petitioner.

4. On the other hand, learned counsel for the complainant assisted by the State counsel have opposed the petition by contending that there is no evidence on record about the conversion of Mst. Bakhto to Islam and that if the said stance of Mst. Bakhto is admitted as correct, even then without observing Iddat Mst. Bakhto Mai could not contract Nikah with Jan Muhammad but she contracted marriage on 4-9-2004 just after one day she left the house of her previous husband Ajmal Ram. Learned counsel has placed reliance on the cases reported in (PLD 1983 SC 713) and (1988 FSC 78) to argue that Nikah of Mst. Bakhto with Jan Muhammad cannot be considered as a valid Nikah. In order to involve the petitioner with the commission of the offence, learned counsel contends that Mst. Amrati wife of the complaint's brother Qaisar Ram was also abducted by Qadir Bakhsh brother of Jan Muhammad and when she was recovered she levelled the allegation of Zina against the petitioner also in her statement under section 161 Cr.P.C. recorded on 27-9-2004.

5. I have heard the arguments of learned counsel for the parties and perused the record.

6. The question whether Nikah of Mst. Bakhto with Jan Muhammad under Muslim Law was valid or not and whether she in fact embraced Islam and whether she could contract marriage with Jan Muhammad without observing Iddat, are the questions which would be decided by the learned trial Court. Presently, neither the case of Mst. Bakhto nor Jan Muhammad is before me as their bail petition has been withdrawn by their learned counsel. However, since petitioner who is not named in the FIR; there is no allegation of commission of Zina against him in the F.I.R. except the subsequent statement of Mst. Amrati made under section 161 Cr.P.C. and that Mst. Bakhto the alleged abductee was recovered from Jan Muhammad and the question whether the petitioner by witnessing the Nikah between Jan Muhammad and Mst. Bakhto acted in good faith, are the questions open to further inquiry. Subsequent statement of Mst. Amrati involving the petitioner for commission of Zina with her at a belated stage, especially when. Mst. Amrati also had filed writ petition in this Court claiming herself to be wife of Qadir Bakhsh and levelling no allegation against the petitioner about commission of Zina, are the questions which cannot be determined at the stage. The petitioner is behind. the bars since 13-9-2004 and no useful purpose would be served by keeping him confined for an indefinite period.

7. For what has been discussed above, this application is allowed and petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.50,000 with two sureties each in the like amount of the satisfaction of learned trial Court/duty Magistrate. H.B.T./M-1181/L Bail granted.