1995 P Cr (PLP)

The petitioner has applied for post-arrest bail in a case registered against him vide F.I.R. No.130/94, dated 12-8-1994 under section 16/10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 380, P.P.C. at Police Station, Rajanpur City.

2. The brief facts arising out of the F.I.R. are that Pir Bakhsh alias Peela petitioner, has developed illicit relations with the wife of the complainant, Mst. Rashida. It is further alleged that on 13-6-1994 he was on his duty, Pir Bakhsh and Allah Ditta abducted his wife and kidnapped his two children and that they also took away ornaments and clothes. It was alleged that this was done to commit Zina with her. P.Ws. allegedly saw them going. Later on section 10 of Hudood Ordinance and section 380, P.P.C. were added by the Investigating Agency.

3. It is submitted by the learned counsel for the petitioner that the case against the petitioner is absolutely false, is the result of mala fide and ulterior. motive, that the petitioner had contracted a valid Nikah after seeing the divorce deed and she also swore an affidavit that she is legally-wedded wife of the petitioner; that neither section 10 or 16 of the Ordinance is applicable because unless the ingredients of section 4 of the Offence of Zina is attracted, no offence can be committed by the spouses who are husband and wife; that Mst. Rashida herself had made the request while appearing before the D.M., Dera Ghazi Khan for her lodgment in Darul Aman and she was sent there, also shows that the petitioner has the least concern with regard to the abduction for commission of Zina and requests for grant of bail.

4. The contentions raised are opposed by the learned State Counsel.

5. I have heard the arguments and gone through the file. The petitioner had contracted a valid Nikah with Mst. Rashida on 15-8-1994 which was duly registered after seeing the divorce deed, dated 11-5-1994. She has also sworn an affidavit with this regard that she is legally-wedded wife of the petitioner. A Photostat of Nikahnama and affidavit are available on the file. Non-submission of notice of Talaaq to Chairman, Union Council does not render the Talaaq ineffective or void. No offence is committed by the spouses who are husband and wife. The matter needs further inquiry. This being the position, the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Rajanpur.

6. The observations made in the above order shall not affect the merits of the case. N.H.Q./P-119/L Bail granted.