2003 PLP 2342 (YLR)

Iftikhar Ibrahim Qureshi for the State. Rana Javed Akhtar for the Complainant. Muhammad Iqbal, the petitioner through the instant petition seeks after arrest bail in case F.I.R. No.211 dated 15-8-2002 originally registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) with Police Station Basti Malook, District Multan. Later on, the police have added section 10(2) of the same in it.

2. Briefly the prosecution case as per F.I.R. is that on 11-8-2002, he alongwith Abdul Sattar and Muhammad Nazir has enticed away Mst. Zahida Perveen, the daughter of the complainant for Zina. She also took with her cash amounting to Rs.10,000 gold ornaments weighing 5 tolas and clothes. She was subsequently arrayed as an accused in the case being consenting party to Zina.

3. It has been contended on his behalf that he has falsely been roped in; that in fact Mst. Zahida Perveen of her own accord has entered into Nikah with him on 15-7-2001 and the copy of their Nikahnama is not only with this petition but also on the police record; that in fact Muhammad Fayyaz and others had abducted her and in respect of which the case F.I.R. No.43 was registered with the same police station on 27-2-2002; that Mahammad Fayyaz claimed her to be his wife, while she has brought suit for jactitation of marriage against him before Family Court and so the case against him is one of further inquiry into his guilt and reliance in this regard is placed upon the case of Muhammad Iqbal v. The State 1998 PCr.LJ 494 Lahore that after the dismissal of his pre-arrest bail petition by the learned Additional Sessions Judge, Multan the police have added section 10(2) of the said Ordinance in the case. While before than that there was no evidence against him in respect of the same; that after his sending to jail there could not be any question of collecting such evidence against him and this also shows mala fide on the part of the police against him and that he is behind the bars and is previous non convict.

4. On the other hand the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he with the help of his co-accused has enticed away the said daughter of the complainant and had been wilfully committing Zina with her and so rightly the offence under section 10(2) of the said Ordinance was added in the case against him; and that suit for jactitation of marriage against said Muhammad Fayyaz was at his instance and while she is legally wedded wife of Muhammad Fayyaz and in presence of his (Muhammad Fayyaz) Nikah with her, they both have been wilfully committing Zina with each other.

5. I have carefully considered submissions made by the learned counsel for the parties with the help of record.

6. The plea of the petitioner /is that said Mst. Zahida Perveen is his legally wedded wife. He has placed Nikahnama with the petition as Annexure ' D' . According to the same, the date of their marriage is 15-7-2001. .Mst. Zahida Perveen as per copy of plaint in suit for jactitation of marriage titled Zahida Perveen v. Muhammad Fayyaz has owned her Nikah with him. She has mentioned therein that her Nikah with him was performed on 15-7-2001 and thereafter she has been performing her matrimonial obligation in his house. It has been stated by the parties that her suit against Muhammad Fayyaz is pending before the Family Court at Multan. She has been allowed pre-arrest bail by the leamea Additional Sessions Judge, Multan vide his l order dated 6-9-2002.

7. In view of the plea of valid marriage raised by him and the pendency of suit for jactitation of marriage brought by her against Muhammad Fayyaz, his case is certainly one of further inquiry and so is covered under subsection (2) of section 497, Cr.P.C. In this regard reference is made to the case or Muhammad Iqbal v. The State 1998 PCr.LJ 494 Lahore. He is behind the bars and stated to be previous non-convict.

8. In these circumstances, he is entitled to bail. I, therefore, accept this petition and admit him to bail provided he furnishes bail bond in the sum of Rs.30,000 (Rupees thirty thousand) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./M-1694/L Bail granted.