MUHAMMAD NAWAZ ABBASI, J.-- The petitioners were arrested in a case under sections 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered against them with Police Station Saddar Mailsi. They after refusal of bail before arrest by learned Addl; Sessions Judge Vehari vide order dated 4.7.1992, moved an application for grant of post arrest bail which too was dismissed and the petitioners have approached this court through this application for grant of bail.
2. The allegations against the petitioners are that they alongwith their co-accused about a month earlier before the registration of case forcibly lifted Mst Altaf Mai to commit zina with her. However after a few days she was restored through Panchayat with the understanding not to report the matter. It is stated that Mst. Altaf Mai appeared before a Magistrate at Multan on 2.7.1990 and made a statement under section 164 Cr.P.C levelling allegation of zina against Abdur Razzak petitioner. She also made similar allegation against him in her statement under section 161 Cr.P.C recorded on 5.8.1992.
3. Learned counsel for the petitioners contends that Altaf Mai was married with the petitioner No.1 on 18.4.1992 and during the investigation the nikah of petitioner No.1 was found genuine whereas the claim of Ali Muhammad was declared as false. He submits that the petitioner has committed no offence and the case against him falls within the purview of section 497(2) Cr.P.C.
4. Learned Addl; A.G. Has opposed the bail on the ground that the evidence available on the record sufficiently connects the petitioners with the commission of offence and the case needs no further inquiry for the purpose of bail.
5. I have considered the arguments advanced by both sides and also perused the record carefully.
Initially the investigation in the case was conducted by the Officers of the rank of DSPs who were called and are present in Court. They with reference to the entries in the relevent register of concerned Union Council declared the nikah of Mst. Altaf Mai with Ali Muhammad invalid.
Nikahkhawan who had performed nikah between Ali Muhammad and Myf. Altaf Mai was made to join the investigation but he had not verified the nikahnama. Mst. Altaf Mai an abductee as per report lodged was made an accused during the investigation on the pretext of elopement but later on again was awarded the status of a witness. Mst. Altaf Mai was in the house of her father when she made a statement u/s 164 Cr.P.C and 161 Cr.P.C levelling allegation of forcible abduction and zina against Abdur Razzak petitioner. It is strange that both DSPs did not give any weight to her statement before a Magistrate pronouncing publically herself wife of Ali Mohammad. Further her identical statement under section 161 Cr.P.C before the Investigating Officers themselves was also not given any weight for the reason that the entry of nikah in question in the relevant register of Union Council was made at page 21 on 11.4.1992 whereas page 19 and 20 of the said register did not contain any entry.
6. I am afraid the pronouncement of marriage by a Muslim Sui Juris lady before a Magistrate leaves no room for any agency to doubt the same on the basis of entries in the register of Union Council not otherwise relevant to the case. The Nikah in the written form is not the essential requirement of marriage between the spouses in Islam. Nikahnama is a document containing the terms and conditions of the contract between the parties and an evidence to the marriage but it cannot be said that there can be no nikah if not in written form. Admittedly the nikah of Mst Altaf Mai with Ali Mohammad is prior in time to that of the alleged nikah claimed by Abdur Razzak, therefore, the entry in the relevant register of the concerned Union Council, in view of the statement of the lady at two occasions coupled with the claim of the complainant in the FIR and the allegation of abduction and zina against Abdur Razzak petitioner and admission of lady her nikah with Ali Muhammad, has no importance. The restoration of the lady through Panchayat and claim of Abdur Razzak of his marriage with Mst Altaf Mai are additional factors to be taken notice of. The claim of Abdur Razzak and his defence plea prima facie does not carry any weight. However, it is for him to establish it at the trial, but this plea in presence of material available on record cannot be a ground for further enquiry to attract the provision of section 497(2) Cr.P.C. The petitioner therefore is not entitled to be extended the concession of bail.
7. The conclusion of Investigating Officers regarding the genuineness of Nikahnama and valid marriage of Razzaq with Mst. Altaf Mai is not based on sound reason and material. Mst. Altaf Mai has disowned her nikah with the petitioner No.1 and claimed herself to be the wife of Ali Muhammad, therefore, the marriage between Ali Mohammad and Mst. Altaf Mai cannot be doubted on the basis of claim of Abdul Razzak which is yet to be proved by him at the trial. Prima facie the defence plea has not been substantiated through any tangible evidence. The abductee consistently levelled allegation of zina against Abdur Razzak in her statement before the Magistrate as well as the Police Officers. Therefore, in the given circumstances, there is sufficient material to connect Abdur Razzak petitioner with the commission of offence and there are reasonable ground to believe that he has committed an offence falling within the. Prohibitory clause of section 497 Cr.P.C. Resultantly the application of Abdur Razzak is dismissed.
8. There are no allegation of zina against Muhammad Shafi petitioner. The Investigating Officer states that during the investigation, it transpired that Afe. Altaf Mai herself disappeared from the house and was not abducted as alleged in the FIR, therefore the case of Muhammad Shafi petitioner falls within the purview of section 497(2) Cr.P.C and requires further inquiry. He is, therefore allowed the concession of bail and is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs. 50,000/- with two sureties in the like amount to the satisfaction of Assistant Commissioner Vehari.
9. The investigation of the case was conducted in an irresponsible manner. The nikah between Mst.
Altaf Mai and Ali Muhammad was declared as invalid without realising the consequences of the same. Mst. Altaf Mai and Ali Muhammad could be prosecuted and charged for zina and forgery etc. Mst Altaf Mai could also be proceeded against under Qazf Ordinance. The declaration of Mst. Altaf Mai and Ali Muhammad to be husband and wife cannot be put in waste basket as has been done in the present case. The marriage is a very sacred institution which is a symbol of dignity of man and woman in a Muslim society. The investigation of such sensitive matters involving rights and duties and legal obligations of citizen should not be conducted in a haphazard manner rather it should be carried fairly, honestly and with full responsibility.