ORDER ABDUL HAFEEZ CHEEMA, J.- Through this criminal miscellaneous petition. Falak Sher son of Sadiq Wattoo of Chak No. 597,GB. .
District Faisalabad, seeks cancellation of bails allowed to respondents No. f to .3 by the learned Additional Sessions Judge, in case FIR Np. 56/97 registered at P.S. Bahlak. Under Section I6 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979. Vide his order dated) 15.4.1997.
2. The facts of the case, relevant to the disposal of this petition, briefly, are that Falak Sher.
Complainant, lodged the FIR with Bahlak Police on 9.3.1997 that on 5.3.1997 at about 5.00 a.m. His daughter, Mst. Rani, wife of Naik Muhammad, was seduced by the accused named therein for illicit intercourse. She was not returned by the accused despite repeated requests by the complainant and consequently the case was registered at his instance.
3. Learned Additional Sessions Judge, Faisalabad, allowed prearrest bails to respondents No. 1 to 3 in the first instance, and then confirmed the same vide his aforesaid orders, chiefly, on the ground that although there were two nikahnamas, one between Mst. Rani and Naik Muhammad and the other showing her marriage with Sadan accused, nevertheless, his examination in the Court revealed that the nikahnama relied upon by the complainant was subsequent in time and was forged w hereas nikahnama. Between Mst.. Rani and Sadan was the correct and proper document.
The learned. Judge also referred (o the statements of the accused made before him that they were living as husband and wife since after their marriage. The learned Judge concluded that this showed that she had married with Sadan and not with Naik Muhammad as claimed by her father.
In this view of the matter, he confirmed the bails of the accused.
4. It is submitted by learned counsel for the petitioner that the impugned order is not merely arbitrary but offends against all cannons of fairplay. Justice and the rules of criminal law: that the learned, judge instead of leaving the matter, in the given circumstances, to the appropriate Court for determination, himself assumed the jurisdiction and allowed them bails on extraneous consider^in: that in such like cases. Supreme Court has held, times without number, that the matter should be left to be adjudicated by the Family Court and ought not to be disposed of by the Criminal Court in bail matter; that the learned Judge has virtually decided the entire case by giving a definite opinion about the validity of marriage of Mst. Rani with Sadan on the basis of statements of the accused themselves: that grave miscarriage of justice has taken. Place and if Ultimately the Family Court decides that marriage of Mst. Rani with Naik Muhammad is prior in time, then, subsequent relations of Mst. Rani with Sadan will be a sheer adulterous intercourse sanctioned by the learned Judge: that the investigation of the case is still in progress and on account of the unwarranted concession given by the Court, the accused are not allowing the 1.0 to come to a logical conclusion. Their bails, therefore, merit to be cancelled so that the case may be investigated properly on correct lines.
5. Learned counsel for the respondents, however, argued that the order is perfectly valid in law and this is what happens in the villages that w hen a girl elopes with her paramour,. The parents invariable connect a nikahnama showing marriage of the girl w with someone prior in time and this actually has been done in this case, as such, the learned Court below' was justified in allowing bails to the respondents.
6. Arguments have been heard and record perused.
There was a clear factual controversy involved in the matter which could be resolved by leading evidence before the Court of competent jurisdiction. Reference in this behalf can be made to Shahida Paneen v. District Judge. Sialkot pad another, (PLD 1980 Lahore 7) wherein it has been held that the best course, in $such' an event, was to leave the question of validity of marriage to be decided by the Court having jurisdiction in the matter as recording of evidence in the High Court is likely to prejudice the case of either party and would create complications in the lower Court.
7. In a similar situation their Lordships of the Supreme Court in Shankar Ali v. Alraf Hussan Qureshi and another (1972 SCM R 398) held that if a habeas corpus petition is filed for furthering illicit love affairs and avoiding criminal prosecution for kidnapping/abduction of a woman, the relief under Section 491, Cr.P.C! Is justifiably refused. The exact wordings of their Lordships are as under: "We are also inclined to agree with the views expressed bv the learned Judge regarding the tendency to abuse the provisions of Section 491, Cr.P.C, on the pan of some young men in furtherance of their illicit love affairs. Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in the community ley w which the law is to be administered. Such being the case, the High Court was justified in refusing relief if it came to the conclusion that the petition had been presented for the sake of furthering an illicit lose affair and avoiding criminal prosecution in connection with the kidnapping/abduction of the woman in question."
8. It appears relevant to point out here that the Courts should specifically keep in mind that this Stale is being governed by the Constitution of Islamic Republic of Pakistan. 1973 and in the presence of Article herein the name of the State is Islamic Republic of Pakistan. Article 2 w which ensures that Islam shall be the State religion and then Article 2-A that makes the Objectives Resolution as substantive part of the Constitution, no interpretation which promotes immorality and advances vices is competent. Moreover. Article 31 enjoins upon the Government that "Steps shall be taken to enable the Muslims of Pakistan, individually and Collectively, to order their lives in accordance with the fundamental principles and basis concepts of Islam, and to provide facilities whereby they may be enabled to understand ,the meaning of life according to the Holy Quran and Sunnah." It is, therefore, clear that any interpretation w which militates against the teachings of Islam, cannot be accepted. Articles 227 to 230 of the Constitution also would show that what can be purpose and policy of the State for which this country' came imo being. Any interpretation of law which runs counter to these substantive provisions of Constitution would tantamount to frustration of the very purpose of the framing of the Constitution of an ideological country like Pakistan.
9. Now in this case the girl was either abducted or she eloped when she was already married as per record, for fostering illicit relations. They remained together for a considerable time and then allegedly entered into marriage much later. Even if the earlier marriage is not proved, how' a young marriageable girl can live with a young man not within prohibitory degree. Although there is ho specific provisions, nevertheless, in view the Constitutional provisions referred to above, no Court can justifiably permit such a relation. In this view of the matter, it appears that the learned Judge has travelled beyond his limits while granting pre-arrest bails to the accused and then confirming the same on whimsical and, false grounds. The bails allowed to Sadan and Mst. Rani are. Therefore, hereby recalled and they shall be taken into custody. However, the to Noor Muhammad accused, in the given circumstances, is not being cancelled. He shall continue to 'join the investigation as and when required by the I.O. The police shall thoroughly investigate the case and shall conclude it w ithin a period of two monins. Failing which the respondents shall be at liberty to move afresh for their bails before the competent Courts.