1988 PLP r (PCRLJ)

(b) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11‑‑Bail, grant of‑‑Investigation of case transpiring that both accused were living as husband and wife‑‑Non‑production of certificate of alleged first marriage between complainant and female accused about validity of existence of such marriage was open to doubt‑‑Prosecution story on face of it making out a case under S.10(2) of Ordinance which was out of prohibitory clause of S. 497(1), Cr.P.C.‑‑Material available on record showing that case against both accused was one of further inquiry‑‑Bail was granted in circumstances. Mrs. Asma Jehangir for Petitioners. Muhammad Iqbal for the State. J.V. Gardner (Amicus curiae). Bashir Masih is involved in a case registered against him on the application moved against him by Munir Masih who complained that his wife Mst. Shahnaz Masih was kidnapped by one Mst. Naziran. After the registration of the case, the investigation progressed and it transpired that Mst. Shahnaz Masih was living with Bashir Masih as his wife.

2. Mrs. Asma Jehangir, Advocate, has very ably argued this case by stating that in fact the first marriage did not at all exist between Mst. Shahnaz Masih and Munir Masih or even if it existed, the divorce had taken place, inasmuch as, Mst. Shahnaz Masih had appeared in a Court of law and had made a statement that she had been divorced and after that she performed her second marriage with Bashir in a Church. It is further submitted by Mrs. Asma Jehangir that in this connection a Punchayat was also convened, in which this matter was probed and Mst. Shahnaz Masih was allowed to marry Bashir Masih.

3. The evidence of these facts necessitated to know the law about the marriages under the Christian Personal Law, therefore, Mr. J.V. Gardner was requested by this Court to appear as amicus curiae. Accordingly Mr. J.V. Gardner has also entered appearance today. According to Mr. J.V. Gardner, under the Christian Personal Law, be it a male or a female, they have to approach the Court of law for seeking dissolution of marriage; whereas, under the Muslim Personal Law, a Muslim husband can divorce his wife at any time but a Muslim woman has to get her marriage dissolved by invoking the jurisdiction of a Court of law. Mr. J.V. Gardner further submits that it is not known whether the first marriage between Mst. Shahnaz Masih and Munir Masih was in fact performed because there is no certificate of marriage issued by the Church on the record and, therefore, it is also open to doubt about the validity or existence of the first marriage. Mrs. Asma Jehangir has also submitted that from the prosecution story, on the face 5V it, no case under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 is made out because the offence would be covered under section 494, P.P.C. which has not been repealed by the Hudood Ordinance and has been kept on the statute book to meet such eventualities. In the alternative, Mrs. Asma Jahangir also pointed out that at best, the offence would fall within the purview of section 10(2) of the Hudood Ordinance which does not fall within the prohibitory clause of section 497 Cr.P.C. Lastly, learned counsel contended that the provision of section 497(1), Cr.P.C. is fully applicable to the case of Mst. Shahnaz Masih, and what to speak of about the nature of the offence in this case, the‑, women have been granted bail even in murder cases. The argument has substance and besides that, I am of the view that it is a case of further enquiry. Accordingly, I direct that Mst. Shahnaz Masih shall be released on bail provided she furnishes security in the sum of Rs.10,000 (Rupees ten thousand) with one surety in the like amount to the satisfaction of A. C. /Duty Magistrate, Lahore.

4. Adverting to the case of Bashir Masih, it is yet to be determined whether he knew the existence or validity of the divorce alleged to have been obtained by Mst. Shahnaz Masih. His case is also of further enquiry and accordingly, I direct that Bashir Masih shall also be released on bail, provided he furnishes security in the sum of Rs.10,000 (Rupees ten thousand) with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Lahore. H.B.T./S‑185/L??????????????????????????????????????????????????????????????????????????????????????????????? Bail granted