' Muhammad Qaiser son of Abdul Sattar got registered an F.I.R. No,129 of 2004 on 3-6-2004 with Police Station, Kot Addu under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 against Qaisar Abbas son of Saeed Abbas, the present petitioner and Mst.
Shazia Hanif with the allegation that Mst. Shazia Hanif was married to him on 15-6-1998 and ner Sharie Nikah was performed with him but she went on to solemnize another marriage on 24-10- 2004 with Qaiser Abbas. So, the second marriage by Mst. Shazia Hanif with Qaiser Abbas was illegal and Qaiser Abbas was committing Zina with Mst. Shazia Hanif. The petitioner was arrested on 7-7- 2004 and since then he is in judicial lock-up.
2. Learned counsel appearing on behalf of the petitioner submits that Mst. Shazia Hanif was born on 6-2-1988 according to the birth entry found from the register of Municipal Committee Kot Addu, so she was minor at the time of alleged marriage with Muhammad Qaiser on 15-6-1998. Mst.
Shazia Hanif had filed a suit for grant of declaration that the marriage was dissolved due to exercise of her option of puberty but it was withdrawn on 29-5-2003. Another suit with the same averment was filed in the year 2003, but was dismissed due to non-payment of process fee. The third suit for grant of decree on the basis of jactitation of marriage was also filed before the learned Judge Family Court, which was still pending in that Court. Learned counsel has submitted that Mst. Shazia Hanif had already been granted bail and to follow the rule of consistency, the petitioner is also entitled to the concession of bail.
3. Learned counsel appearing on behalf of informant states that Mst. Shazia Hanif was legally wedded wife of the informant, and the dismissal of suits filed on the basis of option of puberty were the proof that Mst. Shazia Hanif was his wife and the second marriage performed by her with Qaiser Abbas was illegal. It has further been argued by the learned counsel that the case of the petitioner falls within the prohibitory clause of section 497 of the Cr.P.C. So, the petitioner was not entitled to the concession of bail. Learned counsel appearing on behalf of the State has also supported the arguments of learned counsel for the informant.
4. After hearing all the learned counsel and the perusal of record. I have found that the informant is claiming Mst. Shazia Hanif as his wife on the basis of Sharie Nikah, allegedly performed on 15-6- 1998, while Nikah performed on 24-10-2004 with Qaiser Abbas contains the entry with regard to Mst.
Shazia Hanif to be a virgin girl. Therefore, it cannot be, at present, held that Qaiser Abbas, the petitioner had known the first alleged oral Nikah of Mst. Shazia Hanif with Muhammad Qaiser. I have intentionally avoided to dilate upon the law on the subject, as to what is the impact of filing of a suit for option of puberty because it may prejudice the case of any party at the stage of trial. But prosecution has still to prove its case against the petitioner, which would prove among others, as to whether the petitioner had the knowledge of the earlier alleged Nikah or not, at the time of performance of his Nikah with Mst. Shazia Hanif? From the present record, the mens rca of the offence has not still been found with the petitioner. Moreover, keeping in view the rule of consistency, as same allegations are being levelled against the petitioner as were alleged against Mst. Shazia Hanif upon which she was granted concession of bail, so it would be injustice with Qaiser Abbas, the husband to keep him in the jail for an indefinite period, because still Nikah Khawan is stated to have not been arrested. In these circumstances, the case of the petitioner has fallen within the purview of further inquiry, therefore, in view of what has been discussed above, the petitioner is admitted to bail subject to his furnishing bail bond of Rs,50,000 with one surety in the like amount to the satisfaction of learned trial Court concerned.