1988 P Cr (PLP)

Through this application Zahir Shah son of Umarzada, resident of village Wattar, Tehsil Nowshera, District Peshawar, seeks his release on bail in a case registered against him under section 5/10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance vide F.I.R. No.44 dated 11-1-1986 of Police Station Nowshera Kalan, for the abduction and commission of Zina with Mst. Zahida, his cousin.

2. Zahir Shah, accused-petitioner, and Mst. Zahida both applied for transit bail before arrest on 2-2-1986 at Haripur, as both were saying that they are husband and wife. The learned Additional Sessions Judge Haripur, therefore, allowed them transit pre-arrest bail on the same day and directed them to appear before the Additional Sessions Judge, Nowshera on 17-2-1986. On 17-2-1986 the pre-arrest bail of Zahir Shah, petitioner, was not confirmed. As Mst. Zahida was by then removed from the column of the accused and was made a witness for the prosecution, therefore, there was no need of confirming her bail. Zahir Shah, petitioner, was accordingly arrested on 17-2-1986. The petitioner, therefore, applied for regular bail to the Additional Sessions Judge, Nowshera, who granted him bail on 31-3-1986. The complainant Zewar Zada, father of the abductee, filed an application for cancellation of bail of the petitioner before the High Court and the High Court vide order dated 24-9-1986 cancelled the bail of the petitioner. The petitioner also approached the Supreme Court of Pakistan for his release on bail but withdrew his application on 26-11-1986.

3. The record also reveals that thereafter the petitioner filed a suit for the restitution of conjugal rights before the Family Court at Nowshera and after filing the suit he submitted fresh bail application before the Additional Sessions Judge Nowshera on the ground that since he has filed the suit he should be granted bail so as to defend his case properly. The learned Additional Sessions Judge, Nowshera, however, rejected the application on 21-2-1987 and in his order held that the petitioner can conduct his suit even from jail. Against this order he came to the High Court but the High Court did not interfere with the impugned order. The' petitioner then went to the Supreme Court but the Supreme Court refused to grant leave vide orders dated 31st of March, 1987.

4. Thereafter, new development in the case started when the petitioner filed a suit before the Family Court at Nowshera for the restitution of conjugal rights. As counter-blast to the aforesaid suit Mst. Zahida also applied for jactitation of the marriage alleging that her thumb-impression was obtained on the Nikahnama by force. The learned Family Court, Nowshera dismissed the suit of Mst. Zahida and decreed the suit of the petitioner holding that Mst. Zahida is the legally-wedded wife of the accused-petitioner. The petitioner, therefore, applied for bail and he was allowed bail by the learned Additional Sessions Judge on 23-6-1987. On the other hand Mst. Zahida also challenged the judgments and decrees of the Family Court by filing two separate appeals before the District Judge, Peshawar. The learned District Judge accepted both the appeals of Mst. Zahida and set aside the judgment and decree of the Family Court in favour of the petitioner and decreed her suit for jactitation of her marriage with the petitioner on 19-11-1987. The very District Judge acting as Sessions Judge by making reference to his own judgment cancelled the bail of the petitioner on 16-12-1987. Against the judgment and decree of the District Judge passed on the appeals of Mst: Zahida, the petitioner came to the High Court on writ side and a Division Bench of this Court admitted the writ petition to full hearing and suspended the operation of the impugned judgments on the application of the petitioner on 26-4-1988. The petitioner, therefore, again applied for bail before the learned Additional Sessions Judge, Nowshera but he rejected the same on 2-5-1988. Hence the present bail application.

5. Learned counsel for the petitioner argued that at the trial only 2 P.Ws, namely, Zewar Zada, P.W.1, and Iqbal Khan, S.H.O. P.W.2, have been examined; that the original Nikahnama has been produced by P.Ws. which is EXh.P.l and the date of the marriage in column 12 thereof is 13th of January; 1986; that P.W.2 has also produced original affidavit of Mst. Zahida which is Exh.P.2 wherein she has stated that she has contracted marriage with the petitioner of her free will and that she is major; that both these documents have been produced by the prosecution i.e. by P.W.2 and there is no request by the prosecution that the S.H.O. should be declared hostile or otherwise; that in the cross-examination of the S.H.O. the application of the father of the so-called abductee has been exhibited as D.1, in which the thumb-impression is admitted by Mst. Zahida on the Nikahnama, but through force; that Exh.P.2 has been exhibited on 3-5-1988 and Nikah has been proved and that these developments were not available to the High Court and the Supreme Court of Pakistan during the previous applications.

6. On the other hand learned counsel for the State as well as learned counsel appearing on behalf of the complainant opposed the above-mentioned arguments and the nutshell of their arguments was that as the application for bail of the accused-petitioner has been rejected twice by the superior Courts, therefore, the petitioner is not entitled to the concession of bail.

7. However, as argued by the learned counsel for petitioner, admittedly fresh cause of action arose to the petitioner when the Family Court granted him the decree for the restitution of conjugal rights against Mst. Zahida and on the basis of which the accused petitioner was granted bail. To my view, the learned Additional Sessions Judge, in granting bail after this new development, was quite correct in view of the reported judgment of the Supreme Court of Pakistan in P L D 1984 S C 95 wherein it has been held that when there is a charge of Zina and during the trial if the plea of marriage is taken then such party will file a suit, the trial will be stayed and the judgment of the Family Court will be binding. However, when the appeals of Mst. Zahida found. favour with the District Judge the accused-petitioner lost the concession of bail on that score, but presently the situation is again in favour of the petitioner as this Court has suspended the operation of the impugned judgment of the District Judge under C.M. No.685 of 1987 in W.P.No.610 of 1987 and thus, the judgment and decree of the Family Court is there in the. field, which makes the case of the petitioner an arguable one for the purposes of bail. Furthermore, it is also strange that the same District Judge, who had accepted the appeals of Mst. Zahida, acting as Sessions Judge cancelled the bail of the petitioner by making reference to his own judgment in the bail cancellation order. It is also worth mentioning that at the earlier stage there were available only photo copies of the Nikahnama and affidavit of Misc. Zahida but now the prosecution has itself produced these documents in original at the trial and the same have duly been exhibited which fact also makes the case of the petitioner fit for further probe.

8. Therefore, without going deep into the merits of the case, I am of the view that presently the accused-petitioner is entitled to be released on bail provided he furnishes bail bonds in the sum of Rs.30,000 with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate, Nowshera. M.A.K./636/P Bail granted.