The complainant, Jehanzeb son of Samundar Khan, had submitted an application to the Sub- Divisional Magistrate, Battagram wherein he had stated that petitioner Mst. Farengez daughter of Rustam Khan was married to his son Mubarak Khan and that in this respect Nikah was duly performed by one Maulvi Taj Muhammad. Rs. 30,000 was fixed as dower amount. It was further stated that the petitioner had instituted a suit against his son for jactitation of marriage, in the Court of Judge, Family Court, Mansehra. That during the pendency of the said suit the petitioner contracted a second marriage with one Hayat Khan son of Mir Malik on 23-9-1994 without, in the first instance, getting a divorce from her first husband, that therefore, the petitioner and her second husband i.e., Hayat Khan were indulging in "Zina" since 23-9-1994.
2. The said application was marked by the Sub-Divisional Magistrate, Batagram to the concerned Police Officer for inquiry. The I. O. Investigated the matter and recorded the statements of various witnesses under sections 161 and 164 Cr P.C.
3. As a result thereof F.I.R. No. 89 dated 3-11-1994 was registered under section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in Police Station Chanjal against the petitioner as well as her father (Rustam Khan), her second husband (Hayat Khan), Shah Rozam, Shereen and Habib-ur-Rehman etc.
4. The petitioner, her father (Rustam Khan), her second husband (Hayat Khan), Shereen and Habib- ur Rehman, in the first place moved the Court of Sessions Judge, Batagram for the grant of pre- arrest bail. The Sessions Judge, however, refused to grant them pre-arrest bail vide his order dated 20-12-1994.
5. The petitioner alongwith others, mentioned above, then applied to the Ilaqa Magistrate for regular bail after arrest. The Ilaqa Magistrate granted bail to Shereen and Habib-ur-Rehman, whereas, bail was refused to the petitioner, her father (Rustam) and her second husband (Hayat Khan.).
6. The petitioner, her father and her second husband then filed an application for grant of bail in tile Court of Sessions Judge, Batagram. As a counterblast bail cancellation application was filed against Shereen and Habib--ur-Rehman by the complainant. In the meantime Jumma Khan, Afzal and Sher Muhammad also applied to the. Sessions Judge for pre-arrest bail. All these applications, it may be stated, were disposed of by the Session Judge vide, his order dated 1-2-1995.
7. The Sessions Judge granted pre-arrest bail to Jumma Khan, Afzal and Shad Muhammad. He also granted bail, after arrest, to Rustam Khan (father of the petitioner) and Hayat Khan (the second husband of the petitioner). In addition, he dismissed the bail cancellation application of the complainant filed against Shereen and others who were granted bail by the Magistrate.
8. Very strangely, the Sessions Judge refused to release the petitioner---lady on bail holding, mainly, that if the lady accused is allowed bail being charged of having re-married during the existence of her previous Nikah, in that case she would be able to lead an "immoral life".
9. Aggrieved by the said order of the Sessions Judge (Mr. Alam Zeb Khan), the petitioner-lady has come to this Court for the redress of her grievance and has prayed that she be released on bail.
10. Mr. Muhammad Akmal Malik, Advocate, learned counsel for the petitioner and Qazi Abdul Jalil, Advocate, learned counsel for the State present and heard. Record of the case perused
11. Needless to mention that in this case that petitioner had filed a suit for jactitation of her marriage in the Court of Judge, Family Court, Mansehra on 6-11-1993 wherein she stated that she was not the legally-wedded wife of one Mubarak son of Jehanzeb---complainant, that the defendant be restrained from claiming her to be his legally-wedded wife. In the alternative, the petitioner prayed that a -decree for dissolution of marriage be granted to her by way of `Khula'. From the record it is apparent that with effect from 6-11-1993, the date of institution of the suit for jactitation of marriage, till 3-11-1994 i.e., for a period of full one year, Mubarak Khan the alleged first husband of the petitioner or his father Jehanzeb (complainant) did not bother to attend the Court and contest the said suit. It may be pointed out here that all efforts to serve Mubarak Khan, defendant had failed and as such the Judge Family Court had to serve him through advertisement in the daily "Nawa-i- Waqt", Rawalpindi `dated 4-10-1994. Since no body appeared before the Judge Family Court even after that, therefore, an ex parte decree was granted to the petitioner on 23-1-1995.
12. A perusal of the said judgment/record would reveal that the petitioner was a minor girl of about 14 years when she was allegedly given in marriage to Mubarak Khan, that on attaining .The age of 16 years she repudiated her marriage by exercising her right of option of puberty. It has also been observed in the said judgment that "Rukhsati" had not taken place before the said repudiation of the marriage by the petitioner and that the husband had also contracted a second marriage and is living with her in Saudi Arabia.
13. In the circumstances, therefore, I am of the view that the petitioner is entitled to be released on bail not as a matter of grace but as a matter of right:-- Firstly on the ground that she had repudiated her marriage by exercising her right of option of puberty under section 2(vii) of the Dissolution of Muslim Marriages Act (VIII of 1939), (on 6-11-1993 and before her second marriage on 23-9-1994) for the validity of which the order of the Court is not essential. In this respect I am supported. By the following cases:---
(1) PLD 1950 Lah. 203 Muhammad Bakhsh v. Crown and others.
"Mr. Ameer A.I has further observed that conviction in such cases would be wrong, for supposing even consummation had taken place after the first marriage, the subsequent marriage being shubhat-ul-akd neither, the women nor the men marrying them would under the Muhammadan Law, be liable to any punishment though the Qazi, might give back the women to the first husband.
But when there has been no consummation, and the girl on attaining puberty and durin the absence or imprisonment of the man to whom she was contracted in infancy, marries another person, the second marriage would be valid The opinion of Mr. Ameer A.I is supported by Chapter II of Hamilton's Hedayat (Grady's Edition) at page 182. It is explained therein that an erroneous carnal conjunction would not fall within the definition of the terms `Zina' fornication which incurs Hadd or the prescribed punishment. A similar view is expressed at page 33 of the Kitab-un-Nikah by Maulvi Sayyed Munawar-ud-Din.
The view adopted by Mr. Ameer A.I is strengthened by an opinion expressed in the Fatwa-i-Alamgiri at page 161 of the Urdu translation referred to above. The quotation is as follows:-- . . . . . . . . . . . . . . . . . . . `If the minor on attaining puberty has exercised her option and has obtained witnesses to that effect but she did not approach the Qazi for two months, she would retain her option until she had allowed her husband to co-habit with her. This is in the Zakhira.'
On principle, if the right is retained intact for a period of two months or more, without going to the Qazi, it is not understandable why the Qazi's order should be essential to lend validity to the exercise of that right.
On a view of the original authorities, therefore, and having regard to of the well-known savant, the late Sayyed Ameer A.I, I have reached the conclusion that a Court's order is not essential for conferring validity on the exercise of the option of puberty. The Qazi must be replaced in the modern context by the Civil Court. The Court's order would seem to be only necessary to invest it with the judicial imprimatur in order to avoid any possible dispute. As Mr. Ameer A.I has explained
(2) PLD 1965(W.P.) Peshawar 5 (Mst. Sarwar Jan v. Abdul Majid):
(a) Muhammadan Law---Option of puberty---Minor girl retains option till age of 18---Right of annulment continues until she expresses her consent or disapprobation in express terms---Mere consummation does not put an end to right---Consummation, to be effective, must be with wife's consent---Withholding of assent to marriage may be expressed in variety of ways (e.g., remarriage before age of 18 or institution of suit for dissolution, etc.) ---Marriage not consummated--Mere institution of suit for dissolution automatically annuls marriage--------- Dissolution of Muslim Marriages Act (VIII of 1939), S.2 (vii)."
Secondly, all the co-accused had either been released on bail by the Ilaqa Magistrate or by the Sessions Judge and, therefore, keeping in view the principle of consistency of bail, the petitioner was also entitled to be released on bail, and Thirdly, the petitioner being a lady, her case falls under the first proviso of section 497, Cr.P.C.
14. For the above reasons the petitioner was admitted to bail tide my short order, dated 16th March, 1995.