1. I propose to dispose of two bail applications bearing Criminal Bail Application No. 1202 of 1985 and 1203 of 1985 by a singal order. The case of prosecution as stated in the F.I.R. Lodged by one Muhammad Abdul Zaheer on 29-7-1985 at Police Station Bridge, Karachi is that his were Mst.
2. Rahima Khatoon was residing with her mother Aameeba in a Juggi behind Jacob Line. He got information on 27-9-1985 that his were was abducted by Habibullah son of Hidayatullah with intent to commit Zina.
3. Police during the investigation arrested applicants Muhammad Habibullah and Mst. Rahima. They have been challaned for the offences punishable under section 11/16 Zina (Hudood) Ordinance, 1979.
4. I have heard the learned counsel appearing for the applicants. They have contended that Mst.
5. Rahima was widow and she entered into marriage with Muhammad Habibullah. In support of their contentions a copy of Nikahnama relating to the marriage of Mst. Rahima and Habibullah, dated 26-7-1985 has been produced. It has been further argued that the applicants could not be charged for committing Zina wilfully and offence if any may fall under section 494, P.P.C. And 10(2)
6. Zina (Enforcement of Hudood) Ordinance, 1979 not punishable with death or imprisonment of life.
7. Mr. M.M. Kazi appearing for the applicant Muhammad Habibullah has cited 1984 P Cr. L J 129, 1982 P Cr. L J 123, 1982 P Cr. L J 184 and submitted that where two Nikahnamas are produced the Courts have considered that point for the purpose of bail.
8. Mr. Mehtab Ahmed, appearing for Mst. Rahima Khatoon has argued that she is a woman and under the exceptions of section 497 Cr.P.C. She is entitled to bail. He has cited 1984 P Cr. L J 3124.
9. Mr. Sarfraz Ahmed, the learned A.A.-G. Has opposed the bail and stated that Mst. Rahima Khatoon is legally-wedded were of complainant has committed Zina with Muhammad Habibullah, therefore, they are not entitled to bail.
10. The complainant Muhammad Abdul Zaheer in his F. I. R. Has clearly stated that applicant Mst.
11. Rahima used to reside with her mother. There is nothing on the record that she had been living with the complainant. The two Nikahnamas are on the record and it is for the trial Court to decide which Nikahnama is genuine. The applicant Mst. Rahima also filed suit for jactitation of marriage in the Family Court at Karachi wherein she has alleged that Nikahnama produced by complainant is forged one. This suit has been filed after this case which is pending.
12. Mr. Sarfraz Ahmed, Asstt. A.-G. Pointed out that mother of Mst. Rahima was examined by the police and during the investigation she has supported the case of applicants and stated that her daughter Mst. Rahima Khatoon was widow, when her marriage took place with Muhammad Habibullah. Mr. M.M. Kazi during the course of arguments pointed out that applicant M. Habibullah is serving somewhere in Arab countries and came here on leave. He has no objection to surrender passport till decision of the Court. In my view this is a case which requires further enquiry.
13. The applicant Muhammad Habibullah is admitted to bail on furnishing two sureties in the sum of Rs.50,000 each and P.R. Bond in the like amount to the satisfaction of the Sessions Judge, East Karachi. He is further directed to surrender his passport with the trial Judge to ensure that he will not abscond after his release on bail. However the trial Judge can return passport at any time if it is shown to him that applicant Habibullah is not likely to abscond or otherwise. I also admit the applicant Mst. Rahima Khatoon to bail on furnishing one surety in the sum of Rs.50,000 and P.R.
14. Bond in the like amount to the satisfaction of the learned Sessions Judge, East, Karachi.