2011 PLP 2922 (YLR)

ABDUS SATTAR ASGHAR, J.

Adnan Sharif petitioner/accused of case F.I.R. No.205 of 2011 dated 6-6-2011 under sections 376/496-A, P.P.C., Police Station City Mandi Bahauddin has sought post-arrest bail through this petition.

2. As per F.I.R. lodged on 6-6-2011 on the application of Surayya Khanum, it is alleged that her step-daughter Mst. Bushra Bibi is wedded to accused Adnan Sharif and both are living matrimonial life; that on 4-12-2010 at 6 P.M. complainant along with her real daughter Mehvish Zohaib were waiting for a rickshaw on the road-side to go to city Mandi Bahauddin to purchase some cloth when the accused Adnan Sharif with two unknown persons on a white coloured car came from city side and on the gun point forcibly boarded Mst. Mehvish Zohaib in the car and took her to Lahore at some unknown place and committed forcible Zina with Mehvish; that Adnan Sharif also forcibly contracted Nikah with Mehvish Zohaib against the law and Sharia; that accused Adnan Sharif detained Mehvish up till 2-6-2011 and has been forcibly committing Zina with her; that on 2-6-2011 Mehvish managed her escape from the clutches of the accused Adnan Sharif and informed the complainant about the details.

3. Learned counsel for the petitioner has argued that he is falsely implicated with malice; that the F.I.R. is lodged after six months of the alleged occurrence without assigning any reason; that Mehvish contracted lawful and valid marriage with the petitioner on 15-12-2010; that Mehvish is not the real sister of his first wife; that his marriage with Mehvish cannot be termed as void; that at the most it can be said an irregular marriage in terms of section 263 of the Muhammadan Law by' D.F. Mulla. He has also taken reliance upon Muhammad Nawaz v. The State (PLD 2004 Lahore 365); that. in the meanwhile Mst. Mehvish has been serving as a Nurse at Rahat Hospital; that the alleged story of abduction and commission of Zina is false, frivolous and concocted; that the offences under sections 376 and 496-A, P.P.C. do not attract and the circumstances of the case require further probe.

4. It is strenuously opposed by the learned D.P.-G. for the State and the counsel for the complainant with the arguments that the petitioner's first wife Mst. Bushra Bibi and Mst. Mehvish the alleged abductee and victim of the instant case are real sisters as daughters of Javed Iqbal therefore petitioner's alleged marriage with Mehvish is void and not irregular. He has further argued that the above cited case of Muhammad Nawaz a Single Bench Judgment of this Court has been dissented by a subsequent Division Bench judgment in the case of Talib 'Hussain v. Mst. Yasmin Ara and another (2009 PCr.LJ 982 Lahore); that the petitioner is a habitual offender; that he had actually enticed/ abducted his first wife Mst. Bushra Iqbal and thereafter contracted Nikah with her and in this regard F.I.R. No.14 of 2010 dated 11-1-2010, Police Station City Mandi Bahauddin was registered against him on the complainant of Mst. Ishrat Bibi wife of Muhammad Iqbal and mother of Bushra Bibi: that later on, with the intervention of brotherhood complainant of the said F.I.R. accepted the situation; that thereafter the petitioner/accused has abducted and enticed Mst. Mehvish the real sister of his first wife Mst. Bushra therefore the offences under sections 496-A and 376, P.P.C. are attracted to the circumstances of the case and the petitioner does not deserve concession of bail.

5. I have given patient hearing to the counsel for the parties and gone through the record with their able assistance.

6. It is admitted on the record that petitioner's first wife Mst. Bushra Bibi and Mst. Mehvish alleged abductee/victim of the instant case are daughters of Javed Iqbal. Said Javed Iqbal contracted two marriages, one with Mst. Ishrat Begum and the other with Mst. Surayya Begum. Mst. Bushra Bibi is daughter of Javed Iqbal from Mst. Ishrat Begum whereas Mst. Mehvish is daughter of Javed Iqbal from Surayya Begum.

7. To resolve the instant controversy. as to whether petitioner's marriage with Mst. Mehvish Zohaib is irregular or void I would take an opportunity to reproduce hereunder Verse No.23 of Surah Al-Nisa of the Holy Quran and section 263 of the Muhammadan Law by D.F. Mulla, which reads as under:-- "Verse

23. Prohibited to you (for marriage) are:

Your mothers, daughters, sisters, father's sisters, Mother's sisters; brother's daughters, sister's daughters, foster mothers (who gave you suck), foster sisters, your wives' mothers; Your step-daughters under your guardianship born of your wives To whom ye have gone in,-- No prohibition if ye have not gone in; (Those who have been) Wives of your sons proceeding from your loins; And two sisters in wedlock at one and the same 'time, Except for what is past; For. Allah is 'oft-Forgiving, Most Merciful;-- Section 263 of Mohamadan Law: A man may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage, that if either of them had been a male, they could not have ' lawfully intermarried as for instance two sisters, or aunt and niece. The bar of unlawful conjunction renders a marriage irregular, not void."

8. Comparative reading of both the above referred provisions therefore makes it crystal clear that juristic view of D.F. Mulla that unlawful conjunction of two sisters in wedlock at one time renders a marriage irregular is repugnant to the prohibition ordained by Almighty Allah in Verse No.23 of Surah Al-Nisa of the Holy Quran whereby a Muslim is prohibited to have two sisters in wedlock at one and the same time. Therefore, petitioner's marriage with Mehvish is void and not irregular. Certainly maintenance of nuptial relations in result of a void marriage cannot be termed as lawful or valid. Therefore; attraction of the offence under section 376, P.P.C. in the attending circumstances does not call for any further inquiry. Offence under section 376 falls within the prohibitory clause. The petitioner therefore is not entitled to the concession of bail at this stage.?????

9. For what has been discussed above, this bail petition is dismissed. H.B.T./A-204/L?????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.