At the instance -of Naseem Akhtar's father, Khushi Muhammad, a case under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), was registered against the petitioners at P.S. Chaubara, District Layyah, on 21-10-1992, vide F. I. R. No. 137. Their bail petition was dismissed by the learned Sessions Judge, Layyah, on 27-2-1993.
They have repeated the prayer by approaching this Court. They claim to be wife and husband having lawfully married each other on 17-10-1992. This marriage was performed at Lahore (in Allama Iqbal Town), and was obviously without concurrence of approval of the parents of the girl.
Khushi Muhammad is in attendance and states that Naseem Akhtar was already a married girl, having been given in marriage to Abdul Ghafoor on 24-7-1992. She, however, was abducted away by Zafar Iqbal, who might have manufactured a Nikahnama. A.S.I., in attendance, on enquiry made by the Court, has stated that Naseem Akhtar's Nikah with Abdul Ghafoor has been found genuine and the one with Zafar Iqbal has been found to be a forged one. She had eloped with her paramour, Zafar Iqbal, but continues to be the legally wedded wife of Abdul, Ghafoor, Nikah with whom even otherwise also is prior in time.
2. The petitioners had earlier also filed a Writ Petition (No.3715 of 1992). It was recently disposed of by this Court (Ch. Ghulam Sarwar, J.) on 21-2-1993. Initially it has been entertained on 12-12-1992 by my learned brother Sajjad Ahmad Sipra, J. Who had directed the Investigating Officer to join the petitioners with the investigation and afford them an opportunity to probe their plea of innocence, without subjecting them to undue harassment.
3. Learned counsel for the petitioners maintains that it would not be lawful for the police to make determination as to which Nikah is genuine. Naseem Akhtar has filed a suit for jactitation of marriage against Abdul Ghafoor and the same is pending. Family Court alone would be competent to give the necessary verdict whether Naseem Akhtar, as she claims, had never married Abdul Ghafoor and the Nikahnama she 'was referring to was in fact a fabricated one. Prayer is that the petitioners be admitted to bail, as they are legally wedded spouses.
4. At this stage, however, the aforesaid claim of the petitioners can also not be accepted as a gospel truth. So long as they do not earn acquittal in the criminal case, they have to face the music, and mere institution of a suit for jactitation of marriage will not provide them a cover against their criminal prosecution.
5. Complainant being father of the girl is not expected to have maligned her and involved her falsely in this case. If despite being wife of another person, Naseem Akhtar had eloped with Zafar Iqbal, and they are living together, it would be a. Life of adultery, which conduct cannot be approved. They would be taken to have, as is alleged, committed a serious crime, namely commission of Zina, and indulgence, therefore, ought not to be allowed to them. The bail petition is dismissed.