' On 15-10-2002 Mst. Sadia tram daughter of Muhammad Yousaf, admittedly the sister of the petitioner Robina Firdaus filed a written application before S.H.O. P6lice Station, Sadiqabad, District Rawalpindi, stating that on 8-9-2002 at 8-00 p.m she was present alone in her house. Muhammad Ali Babar the husband of her said sister came there and told her that Rubina is seriously ill and she should accompany her and that he will inform her father at his shop She accordingly went along but respondent took her to Mardan in a friend's house where she was kept for one week and was subjected to zina. Then she was brought to the house of friend of respondent in Dhok Hassu and she managed to escape. She informed her father of what had. Happened. Then she stated that three years earlier also respondent taken her along to an office and fictitious Nikah was performed and he had been committing zina with. Her as a result whereof a daughter, namely, Maheen was born. A case under sections 11/15 of Offence of Zina (Enforcement of Hadood) Ordinance, .1979 was registered. The respondent was sent up for trial and was being tried by a learned A.S.J. Rawalpindi.
On 20-8-2003 the said Sadia tram was put in witness-box as P.W.9 when she proceeded to describe herself as wife of Muhammad Ali , respondent aged 22 years. She then proceeded to take a volte face and stated that the said Babar Ali accused present in Court is her husband and marriage was contracted by her with him in June, 1998 with her free consent. She did not lodge any case against him and that the said case was in fact got registered by her father and brother who obtained her signatures on blank papers. At this stage she was declared hostile on the request of the prosecutor who put the said contents to her and she of course denied the same. Thereafter the respondent filed an application for grant of bail on 2-9-2003. The learned A.S.J, Rawalpindi granted bail vide order dated 10-9-2003. The reason was given that in view of the said statement made by the said lady the case of the respondent has become one of further inquiry.
2. Learned counsel for the petitioner contends with reference to the case. Of Mushtaq Ahmad .v. The State 2001 PCr.LJ 949 that in view of the admitted facts of the case that the respondent was married to her real sister i.e. The petitioner and even . Assuming that there was a Nikah no case for grant of bail stood made out and the learned A.S.J has acted without lawful authority.
3. Malik Waheed Anjum, learned counsel for the respondent, on the other hand, has argued that on the application of the petitioner herself the proceedings in the said challan case have been stayed by the learned A.S.J vide order dated 6-10-2003 while in the complaint case the respondent has been summoned and he has filed bonds. The contention is that the proceedings having been stayed in the challan case, the present criminal misc. Cannot proceed. He then relies heavily upon the statement of Sadia Iram to justify the order passed by the learned A.S.J granting bail to his client.
4. I have examined the several documents placed on record by the petitioner alongwith criminal misc. And by the respondent alongwith Cr1. Misc. No.77/M of 2004 today. I have already noted the contentions of the learned counsel above, learned counsel for respondent was asked as to whether he can state the date of alleged marriage between the respondent and Sadia Iram and further the date of alleged divorce. He states that he will take the appropriate pleas before the learned trial Court in the complaint case.
5. This being so, we are left with established facts that the respondent is married to the petitioner who is real sister of said Sadia Iram to whom the contents of the said F.I.R. Are attributed and but later resiled in the witness-box stating that she is married to the respondent. To my mind, the judgment being relied upon by the learned counsel for the petitioner is squarely applicable.
6. Now coming to the said contention of learned counsel for respondent. I find the challan case has been stayed with reference to the judgment of Honourable Supreme Court in the case of Nur Elahi v. The State PLD 1966 SC 708. Now examination of the said judgment would reveal that their lordships found that no provisions are there in the Code of Criminal Procedure to meet the situation arising before their lordships. Thereafter with specific reference to some provisions of C.P.0 and principles governing matter of consolidation of civil suits, ultimately it was directed that the challan case is to be stayed and proceedings are first to be taken in the complaint case. Now learned counsel appears to be under the impression that the stay of proceedings meant termination of the same. However, this is not so. The proceedings for all purposes remained pending to be re- commenced after the decision of the complaint case. This being so, the stay of proceedings in the challan case would not at all have any effect on this interlocutory matter.
7. The criminal misc. Is accordingly allowed and by the learned A.S.J to Mohammad Ali Babar respondent No.1 vide order dated 10-9-2003 is hereby cancelled.
Bail cancelled.