1988 P Cr (PLP)

‑‑‑Ss. 10 & 15‑‑Penal Code (XLV of 1860), Ss. 420, 468 & 471‑‑Allegation of Zina‑‑Plea of marriage‑‑Question of fact whether a man or woman are married to each other can be adjudicated upon by a Family Court and till such a Court gives a verdict that a man and woman who claim to he married, are not married to each other, it has to be taken that they are a legally wedded couple. Unless otherwise proved, it has to be taken that parties are legally wedded to each other. Registration of a marriage may be a requirement of law but it does not mean performance of Nikah without a Nikahnama or any other writing is void ab initio. In any case the question of fact whether a man or woman are married to each other can be adjudicated upon by a Family Court and till such a Court gives a virdict that a man and woman who claim to be married, are not married to each other it has to 1`e taken that they are a legally wedded couple. Muhammad Hayat and others v. the State 1988 S C M R 474 fol. Mazar Muhammad Tahir for Appellant. Mst. Bakhat Bano respondent No.2 was a widow. According to respondents Nos.1 and 2 she married Noor Khan respondent No.1 or, 14‑3‑1983 after the death of her previous husband. The petitioner who is a brother of Mst. Bakhat Bano lodged F.I.R. No.23 on 6‑5‑1988 that about 15 days prior to the said date he saw respondents Nos. 1 and 2 committing Zina with each other. It was later found that the alleged Nikahnama dated 14‑3‑1983 was a forged one and, therefore, in addition to sections 10 and 15 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), sections 420, 468 and 471, P.P.C. were also added and Fateh Muhammad and Khan Gul, Nikahkhawn and witness of Nikah were also arrayed as accused persons in the case. The said 'Fateh Muhammad and Khan Gul were allowed bail by the learned Additional Sessions Judge, Attock vide order dated 29‑5‑1988. Through the same order he also allowed bail to respondents Nos.1 and

2. The order relating to the grant of bail to respondents Nos.1 and 2 has been challenged through this petition and the petitioner has prayed for cancellation of bail of respondents Nos.1 and

2. I have perused the record and have heard the arguments.

2. As narrated above the petitioner is a brother of respondent No.2 Mst. Bakhat Bano. Noor Khan respondent No.1 is her cousin being a son of her maternal‑aunt. In the F.I.R. itself the petitioner disclosed that when he saw respondents Nos.1 and 2 while having a sexual intercourse he was at once told that they had secretly married each other. Therefore, the plea of Nikah taken by respondents Nos.1 and 2 is not an afterthought. Respondents Nos.1 and 2 are living together, as admitted by them, as husband and wife. Their version is supported by the documentary evidence in the shape of Nikahnama which is further supported by Fateh Muhammad and Khan Gul who have been already arrayed as accused. Therefore, unless otherwise proved, it has to be taken that respondents Nos.1 and 2 are legally wedded to each other. It may be added that registration of a marriage may be a requirement of law but it does not mean performance of Nikah without a Nikahnama or any other writing is void ab initio. In any case the question of fact whether a man or woman are married to each other can be adjudicated upon by a Family Court and till such a Court gives a verdict that a man and woman who claim to be married, are not married to each other it has to be taken that they are a legally wedded couple. This view is also supported by the dictum of Honourable the Supreme Court laid down in Muhammad Hayat and others v. The State 1988 S C M R

474. In these circumstances respondents Nos.1 and 2 were rightly allowed bail by the learned Additional Sessions Judge, Attock. The petition for cancellation of bail is dismissed in limine. M.B.A./M‑800/L Petition dismissed.