SAIDUZZAMAN SIDDIQUI, J.---The petition is seeking leave to appeal, against the order of a learned Judge in chamber of Lahore High Court dated 14-2-1995 whereby the learned Judge refused to cancel the bail granted to respondent No. l in a case registered against him under section 11 of the Offence of Zina (Enforcement of Hudood (Ordinance, 1979), hereinafter to be referred as 'the Ordinance' only read with sections 380 and 337-J, P. P. C.
2. A case under section 11 of the Ordinance read with sections 380 and 337-J, P.P.C. Was registered against respondents Nos. l and 2 at the instance of the petitioner, who is father of respondent No.2, vide F.I.R. No.487 of 1994 dated 27-10-1994 at Police Station Lower Mall, Lahore. Respondent No.1 claimed to have married respondent No.2 on 23-9-1994. However, the fact of marriage was disputed by the petitioner who claimed that 'Nikahnama' was a forged document and that the parties were not validly married. The learned Judge in Chamber while refusing to interfere with the order of Trial Court, admitting respondent No.1 to bail took note of the following order dated 1-11- 1994 passed in Writ Petition No.12877 of 1994 by another learned Judge of the same Court in a connected matter:-- "On 31-10-1.994, petitioner No.1 who is daughter of complainant in F.I.R. No.487/94 P.S. Lower Mall joined her father by mutual arrangement. Today, both the parties request for further the to sort out the matter. Petitioner No.1 has expressed her desire to go alongwith petitioner No.2 with whom she has contracted Nikah. This is not objected to by father of petitioner No. l."
It was also observed by the learned Judge in Chamber that the question whether the marriage was validly performed or that it was void or irregular, is a question which can be determined only after evidence is produced before the Trial Court during the trial.
3. The learned counsel for the petitioner relied on the case Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95) in support of the contention that a valid marriage is a sine qua non for the success of the defence in a case where the accused is being prosecuted for the offence of Zina under the Ordinance. The learned counsel contended that the circumstances in the present case strongly suggested that there was no valid marriage between respondents Nos. l and 2 and as such, the grant of bail to respondent No. l was not in proper exercise of discretion vested in the Court. In Muhammad Azam v. Muhammad Iqbal and others, supra, this Court approved its earlier view expressed in Ghulam Shabir Shah v. State (1983 SCM R 942), that the expression 'validly married' under section 4 of the Ordinance is to be given full meanings and effect and irregular marriage affords no protection where law required a valid marriage. Both the above-cited cases were appeals arising from the decision of main cases. Muhammad- Azam's case, supra, was an acquittal appeal from the judgment of Federal Shariat Court acquitting the respondent, Muhammad Iqbal, in that case in a case under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 after setting aside the conviction and sentence awarded by the Sessions Judge, Gujrat. This Court after setting aside the judgment of Federal Shariat Court remanded the case for fresh trial keeping in view the answers to the various questions framed in the judgment which appear at pages Nos.136 and 1.37 of the report in the above case. It is not necessary here to reproduce all the questions framed by the Court in the case as here only question 4(i) and (ii) will be relevant which were as follows:-- "(4) When the plea of valid Nikah is raised before a criminal Trial Court, what are its options?
(i) Stay criminal case till decision by Family Court of suit already pending. Whether the Supreme Court ruling in the case of Muhammad Akbar v. The State and another (PLD 1968 SC 281) will not cover the situation.
(ii) If suit is not pending whether it is possible to ask the party raising plea to file one; and in case of refusal to do so can a presumption be raised against the party concerned, if so, of what type?"
The abovementioned 2 questions framed by the Court were answered in the judgment as follows:- - "Thus when a plea of defence is raised before a Trial Judge (conducting a trial under this law) regarding Nikah and it needs to be examined as a genuine plea for given a finding of guilty or otherwise and the Court is informed as is visualized in situation No. (i) under question No.4 that the same issue is involved before Family Court (either between the same parties or those directly or indirectly concerned therein on account of the nature of the lis) the Criminal Court would, as held in Muhammad Akbar v. State PLD 1968 SC 281, and as resolved in the case of Nur Elahi, stay the proceedings in the criminal case. The case of Nur Elahi has already been commented upon. It involved the stay of the proceedings on a challan case regarding the same occurrence between the same private parties as were involved in a complaint case which it was held would have to be tiled first; when the proceedings in the challan case would remain stayed. And the result of .The complaint case would even if* not theoretically, practically be reflected in what subsequently happens in the other case on the challan, submitted by the police. The case of Muhammad Akbar also highlights a similar practical controversy regarding possibility of a conflict of decision by to forums. Though the nature of the lis in boh the trials involved in the case of Nur Elahi, was of criminal nature, that in the case of Muhammad Akbar is of dual character; namely, retinal and civil, in the to trials, which were also before to different forums. In the discussion it was assumed, to start with, that whenever same question is being adjudicated upon between the same parties in criminal and civil---forums, the criminal proceedings are not normally postponed, but assumption, as the entire discussion reveals, would ordinary pay if the proceedings are other than bona fide and are pending or commenced in a, civil forum when the same subject-matter requires determination in criminal proceedings. This finds support from the following further observations and rule laid down in that case: 'But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being done in the case if there be a conflict of decision between the Civil Court and the Criminal Court then in such event it is equally clear that the Criminal Court has not only the right to but should also stay its hands until the civil litigation is disposed of, for, it is not desirable that when the title to the property itself is in dispute, the Criminal Courts should give a finding in respect of the same question:.. In exercising this discretion the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceeding is not stayed.'
In that case it was also held that it cannot, therefore, be said that the subject-matter of dispute in the criminal decision is not dependent upon the decision in the "civil litigation", and accordingly the stay of proceedings in the Criminal Court by the High Court in exercise of its power under section 561-A, Cr. P.C. Was upheld by the Supreme Court. Thus question No.4(i) is answered in affirmative.
The answer to sub-question No.4(ii) is that as and when a confident honest plea of Nikah is raised in a bona fide manner, it is the duty of the Trial Court to enquire about the parties' attitude towards its adjudication by the Court of exclusive jurisdiction. If the suit is already pending, it must be taken to its logical end even if certain amendments become necessary due to the criminal involvements.
That being so the Criminal Court would, as already held, stay the proceedings for a reasonable the and/or from the to the. This is permissible under section 344, Cr.P.C. If this can be done, it is reasonable corollary thereof to ask the concerned party, if the suit has not already been instituted, to institute one. And there is nothing in section 114, Evidence Act that the necessary presumption shall not be raised regarding the failure or refusal to file the suit, namely that if instituted the party concerned would have no chance of success. This will also serve as a test for the bona fides and genuineness of the plea. It needs to be observed that once the consideration of postponement of the trial becomes necessary so as to avail or seek adjudication by a Family Court it will be lawful to release the accused on bail so as to enable him to pursue the case before the other forum. But that would not mean that in exceptional proper cases with reasons to be recorded, bail could not be refused or cancelled. The discretion shall have to be exercised keening in view the circumstances including, the conduct of the parties concerned e.g. An attempt or intention to delay or frustrate law I proceedings. But it might be-clarified that an attempt to-compromise. Without intentional delay, in the Family Court proceedings. Will not be -good around for cancellation of bail: because that will be in pursuance of the-mandate of the-relevant law in that behalf."
(The underlining is by us).
5. It is, therefore, quite clear from the above observations that pending decision on the question of validity of marriage, the Court has to exercise discretion judiciously in refusing to enlarge or admit the accused to bail. In the case before us, the learned Judge in Chamber while admitting the accused/respondent No.1 in the case to bail, took into account the order passed by the High Court in Writ Petition No. 12877 of 1994 in a connected matter and also on the consideration that the question of validity or otherwise of the Nikah between respondents Nos.1 and 2 has to be resolved in the light of the evidence which may be produced in the case. We may mention here that we enquired 8 from the learned counsel for the petitioner about the age of respondent No.2 and he told us in reply that respondent No.2 is an adult aged about 22 years. In the above stated background, we do not find any irregularity in the order of the learned Judge in Chamber in refusing to interfere with the grant of bail to respondent No. 1. No case for interference with the judgment of the High Court is made out. The petition is, accordingly, dismissed and leave is refused.