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Petitioner: MUHAMMAD SHAHID VS Respondent: StateHonorable Justice Ch. Iftikhar HussainSardar Tariq Sher Khan
2010 Y L R 1426
2010 Y L R 1426
[Lahore]
Before Ch. Iftikhar Hussain, J
MUHAMMAD SHAHID---Petitioner
Versus
THE STATE and another---Respondents
Criminal Miscellaneous No.3914-B of 2009, decided on 4th November, 2009.
Criminal Procedure Code (V of 1898)---
----S.497(2)---Penal Code (XLV of 1860), Ss.365-B & 376---Abduction and zina-bil- jabr---Bail, grant of---Further inquiry---Alleged abductee though could not prove her case for jactitation of marriage against accused, but still Judge Family Court considering her to be his wife had dissolved their marriage on the basis of khula and decreed her said suit-In view of dissolution of marriage between accused and alleged abductee on the basis of khula, it was very much clear that there had been marriage between them though alleged abductee had disowned such fact and she had been declared his wife---No question, in circumstances, of zina-bil-jabr with her by him arose---Case against accused required further inquiry into his guilt and same was covered under subsection (2) of S.497, Cr. P. C. ---Accused was stated to be behind the bars since 17-8-2009---Accused was admitted to bail, in circumstances.
Sardar Tariq Sher Khan for Petitioner.
Ishfaq Ahmad Malik, Deputy Prosecutor General for the State.
Umer Wadah Khan Halili for Complainant.
Allah Ditta, S.-I. with police record.
ORDER
CH. IFTIKHAR HUSSAIN, J.---Petitioner Muhammad Shahid through the instant petition has sought for post-arrest bail in case F.I.R. No.210 registered under sections 365-B and 376 (i) P.P.C. with Police Station Saddar, Alipur on 8-6-2009.
2. Briefly the allegation against him as per the F.I.R. is that on the night between 21/22-2-2008, he and his brother Rasheed on gun point have abducted Mst. Haleema complainant and took her to Muzaffargarh and therefrom to certain other places and there he (petitioner) had committed Zina-bil-Jabr with her and as a result of the same she became pregnant and one day, she finding on opportunity had escaped and came to her parents.
3. After hearing the learned counsel for the parties and perusing the record, I find that there is an allegation against him of the abduction of the complainant along with his brother Zina-bil-Jabr with her by him and as a result of the same she became pregnant. And contrary to the same, his plea is that she is his legally wedded wife and he had not at all abducted her with anyone. His learned counsel has produced the copy of order dated 27-6-2009 recorded by Mr. Ahmad Nawaz Khan, learned Judge Family Court, Multan in her suit for jactitation of marriage against him. The finding of the learned Judge Family Court in the same is like this:---
"Copy of alleged nikahnama is available on file. I am therefore inclined to hold that the evidence tendered on behalf of the plaintiff is not sufficient to declare the impugned nikahnama as a fake and fictitious one. However, the copy of plaint affidavit on behalf of the plaintiff as well as on behalf of Haji Behram Khan P.W.2 are sufficient to pass a decree for dissolution of marriage in favour of the plaintiff on the basis of Khula. Resultantly, the marriage of the plaintiff is hereby dissolved forthwith the defendant and suit of the plaintiff is hereby decreed on the basis of Khula."
The above position shows that although she could not prove her case for jactitation of marriage against him but still the learned said Judge considering her to be his wife has dissolved their marriage on the basis of Khula and decreed her said suit.
4. The learned counsel for the complainant has submitted that the appeal against such judgment/decree is pending adjudication before the learned District Court but it is not certain that when such an appeal may be decided. However, in view of dissolution of marriage between him and the lady, on the basis of Khula, it is very much clear that there had been marriage between them although the lady has disowned such fact and she has been declared his wife. So, apparently there is no question of Zina-bil-Jabr with her by him. So, in all such circumstances, the case against him requires further inquiry into his guilt and so, the same is covered under subsection (2) of section 497, Cr.PC. He is stated to be behind the bars since 17-8-2009.
5. In these circumstances of the case, I accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.
6. However, it is hereby clarified that the above observations are, tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.
H.B.T./M-13/L Bail granted.