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Petitioner: MAZHAR HUSSAIN VS Respondent: StateHonorable Justice Tassaduq Hussain Jillani and Karamat Nazir BhandariRai Muhammad Tufail Khan Kharal, Advocate Supreme Court with Ch. Muhammad Anwar Khan,Zubair Khalid, A.A.-G. and Matiullah, A.S.-I. Police Station Lundianwala
2006 S C M R 1500
2006 S C M R 1500
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ
MAZHAR HUSSAIN----Petitioner
Versus
THE STATE----Respondent
Criminal Petition No.591-L of 2005, decided on 20th December, 2005.
(On appeal from the order, dated 1-11-2005 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.7432/B of 2005).
Criminal Procedure Code (V of 1898)---
----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Admittedly marriage between the complainant and the lady accused stood dissolved by a Court decree, which had not been annulled by a Court of appeal---Accused had married the said lady subsequent to the aforesaid dissolution and a child was born from the wedlock---Guilt of the accused, thus, required further inquiry---Petition for leave to appeal was consequently converted into appeal and allowed and bail was allowed to accused accordingly.
Rai Muhammad Tufail Khan Kharal, Advocate Supreme Court with Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner.
Zubair Khalid, A.A.-G. and Matiullah, A.S.-I. Police Station Lundianwala, District Faisalabad for the State.
Date of hearing: 20th December, 2005.
ORDER
Petitioner and two others were proceeded against vide F.I.R. No.179 of 2002, Police Station Lundianwala, District Faisalabad, registered on the statement of Faqir Hussain who alleged that his wife Mst. Nasreen eloped with the petitioner in sequel to an illicit liaison.
2. The learned counsel for the petitioner submits that Mst. Nasreen having got dissolved her marriage through a Court decree married petitioner of her own free-will and there is a child from the wedlock. In the afore-referred circumstances he contended, no offence under the Hudood Ordinance is made out. The learned Assistant Advocate-General does not agree, that the marriage between Nasreen and complainant Faqir Hussain stands dissolved by a Court judgment but he added that the said judgment was an ex parte judgment and therefore, it is not free from doubt.
3. Having heard the learned counsel for the petitioner and the State, we are of the view that, admittedly; the marriage between the complainant and Mst. Nasreen stands dissolved by a Court decree which has not been annulled by a Court of appeal. It is not denied that subsequent to the afore-referred dissolution, petitioner married Nasreen and there is a child from the wedlock. In the afore-referred circumstances, the question of petitioner's guilt requires further inquiry.
4. Resultantly this petition is converted into appeal and allowed. The petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of learned trial Court.
N.H.Q./M-42/SC??????????????????????????????????????????????????????????????????????????????? Bail allowed.