1. Being aggrieved with the order dated 6th March, 1984 of Xlth Additional Sessions Judge, Karachi the complainant Sher Muhammad has filed this application under section 497(5), Cr. P. C. In which it is prayed that bail granted to respondent Muhammad Sadiq and Mst. Nasim be cancelled.
2. According to prosecution complainant Sher Muhammad has two daughters namely Nasim Akhtar and Yasmeen. The respondent Muhammad Sadiq was married to Nasim Akhtar about 4 years age.
3. On 5th November, 1983 at 8-00 p.m. Sher Muhammad after attending his duties in Steel Mills returned to his house which is situated at Future Colony Karachi and found that his daughter Yasmeen aged about 13 years. Was not in the house. On enquiry, his wife, Mst. Saeeda Khanum told him that Yasmeen has been taken away at 8-00 a.m. By Sadiq (son-in-law) for Ziarat. He went to the house of Sadiq where his brother Meer Muhammad informed him that Sadiq has taken away his wife for Ziarat and Yasmeen also has gone with them. On 15th January, 1984 his older daughter Nasim Akhtar returned and informed his father Sher Muhammad, that her husband had taken away Yasmeen on the pretext of Ziarat to Haripur. They stayed there for a night and then he took Yasmeen from there and told her that she is being taken to Karachi and she further told her father that her husband did not return, therefore, she has come back. On knowing this Sher Muhammad went and lodged the report under section 10(1), Zina Hudood Ordinance and section 363, P. P. C. At Quaidabad Police Station, Karachi.
4. During investigation it transpited that respondent Muhammad Sadik performed marriage with Yasmeen on 21st November, 1983 at Hayderabad. Police arrested Muhammad Sadik and Yasmeen and challaned them under section 11/10(2), 5(1) of Zina Ordinance, 1979, on the allegations that Muhammad Sadik married Yasmeen his sister-in-law without divorcing his first wife Mst. Nasim Akhtar.
5. A bail application on behalf of respondent was moved and IXth Additional Sessions Judge, Karachi by an order, dated 28th January, 1984 dismissed the bail plea of Muharymad Sadik whereas the application of Yasmeen was not pressed as she was not arrested by that time.
6. A second bail application was moved on 1st March, 1984 and Xth Additional Sessions Judge, Karachi by an order dated 6th March, 1984 granted bail to both the respondents.
7. This application for cancellation of bail was moved on 14th March, 1983 and notices were issued and served to respondents.
8. I have heard Mr. Shaikh F. M. Jawaid appearing for the complainant. Mr. Gul Zaman for the respondents and Mr. Abdul Ghafoor Mangi, Assistant Advocate-General for the State.
9. Mr. Shaikh F. M. Jawaid has contended that bail application of the respondents was rejected on merits by IXth Additional Sessions Judge on 28th January, 1984 when respondent failed to produce any documents about the alleged divorce to Msr. Nasim Akhtar and after one month a copy of an application, purported to have made by respondent Sadiq to Chairman was produced and learned Xth Additional sessions granted bail to them. His contention is that this fact was fully considered in previous application, therefore, order of grant of bail is not proper. He has also relied on the case reported in 1983 SCM R 942 where the points of valid marriage have been discussed.
10. Mr. Gul Zaman Khan, learned counsel appearing for the respondent has submitted that respondent Muhammad Sadiq had divorced Mst. Nasim Akhtar and after giving necessary notice as provided under section 7(1) of the Muslim Family Laws Ordinance and after 90 days of such notice he married her sister Yasmeen, therefore, he is not liable for Zina. He has further argued that Mst.
11. Yasmeen is a major and she has consented to the marriage, therefore, respondents have committed no offence. It has further been argued that Mst. Yasmeen gave a birth to a child who also died. She is presently sick and her case could be covered under section 497, sub-' section (1) of Cr. P. C. And she is entitled to get bail.
12. It is an admitted position that respondent No, 1 has married sister of Mst. Nasim Akhtar but his contention is that he divorced his wife and contracted valid the marriage to her sister Mst.
13. Yasmeen However, it is for the trial Court to decide this fact on merits and on the basis of the evidence. Presently question before me is that whether the order passed by Xth Additional Sessions Judge granting bail to the respondents is proper one. On 28th January, 1984 the bail of the respondent Muhammad Sadiq was rejected by IXth Additional Sessions Judge (Mr. Muhammad Mujeebullah Siddiqui) who passed a speaking order. At that time respondent has failed to produce a copy of divorced notice to be given under section 7(1) of Muslim Family Laws Ordinance.
14. Application was rejected and in the second application on behalf of the respondents a photo copy of divorce deed, dated 20th April, 1983, photo copy of nikahnama dated 21st November, 1983 age certificate of Mst. Yasmeen and copy of notice of divorce deed were produced and bail was granted. As regards nikahnama and age certificate of Mst. Yasmeen I would not like to make any observation but application which. Is claimed to be a notice of divorce was first time produced with this second application under the circumstances when there is no proof whatsoever at this stage whether any notice was given to the Chairman. On the other band from complainant side a certificate dated, 18th April, 1984 issued by Councillor. Mansab Khan, has been produced where it is stated that no such divorce proceedings were initiated by respondent Muhammad Sadiq before him nor such application was received in his office. The very fact that the documents were not produced with previous application creates doubt. In these circumstances when application for grant of bail on the same ground was rejected by one Additional Sessions Judge which is to be seen in the light of case law whether another Additional Sessions Judge can grant bail on the same facts and the circumstances. I am of the considered opinion that the learned Xth Additional Sessions Judge could have easily avoided to indulge into this controversy. I refer to cases on this point which will provide guidelines to the Courts. In case of Khalid Dad and 7 others v. The State it has been held that bail application decided on merits by a single judge of the High Court, another Judge of the same High Court, could not go into merits of case over again. Supreme Court in case of Saleh Muhammad v. The State observed that request of the applicants for bail once rejected on merits by the first order by High Court and unless the request is repeated on grounds other than those available at the time of first application no fresh application on merits could not be entertained by the High Court. In case of Muhammad Yousif v. The State their Lordships have observed as under. Where applications were rejected by Assistant Sessions Judge but bail was granted by the Sessions Judge :- "The learned High Court Judge also considered the application on merits and dismissed the same.
15. We are in respectful agreement with the observations made by the learned Judge in Chamber in paragraphs 7 and 8 of the impugned order (reproduced above). It was highly improper to have kept the bail application pending instead of fixing it before the learned Additional Sessions Judge who had heard and disposed of two earlier bail applications he fixed it before himself and granted bail to the accused. Such conduct is bound to create serious misgiving in the public mind against judicial officers. It appears that the matter was not brought to the notice of the Chief Justice Lahore High Court because, otherwise he would have certainly enquired into it."
16. The Additional Sessions Judge has observed in his order that this is a case which requires further enquiry. On this I refer to a case State v. Bago where Chief Justice Mr. Justice Abdul Hayee Kureshi has interpreted the word "further enquiry" and observed as under :- "The Additional Sessions Judge has also stated that this was a case of `further enquiry'. Perhaps, the Judge had provisions of subsection (2) of section 797, Cr. P. C. In his mind. The Judge has not explained as to what is the meaning or import of these words but what can be gathered from the tenor of this order seems to convey, that the evidence of a nature, which may ultimately be disbelieved, would turn a case as fit for grant of bail. In my view this is complete misreading of the words 'further enquiry' I would not like to interpret these words in great detail, because a Divisional Bench of this Court will soon consider the import of these words as contained in section 497, Cr. P.
17. C. I would however, state that normally 'further enquiry' would mean the collection of some additional material or evidence, so that the case may be termed to be one requiring further enquiry, if the present evidence is deficient or inclusive. In the instant case both Dittal and Shahan have implicated the respondent."
18. Mst. Yasmeen's bail was not refused by IXth Additional Sessions Judge on merits but she was not arrested at that time, therefore, his bail application was withdrawn on 28th January 1984. The bail application of Muhammad Sadiq was rejected by one Judge and granted by another Judge, contrary to principles of law. Under these circumstances I set aside the order, dated 6th March, 1984 passed by the Xth Additional Sessions Judge, and order that respondent Muhammad Sadiq be remanded to custody. So far Mst. Yasmeen is concerned she is stated to be a girl and recently has given birth to a child. At this stage I am inclined to extend concession of bail to her as envisaged under section 497(1) on the sole ground that she is a woman. She is allowed to continue on bail. Copy of this order be sent to the Sessions Judge, Karachi. 1982 P Cr. L J 713 1983 SCM R 341 1984 SCM R 136 1984 P Cr. L J 721 1 2 3 4 1 2 3 4