' The petitioner is under arrest in a case under Article 4/10 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No, VII of 1979), registered against him on the statement of Mst. Rohina Iqbal daughter of Muhammad Iqbal Qureshi, a resident of Islamabad through F.I.R.
No,274, dated 25-9-1997 at Police Station Margalla Islamabad. After dismissal of his application for bail before arrest by the learned Sessions Judge, Islamabad vide order dated 13-12-1997 was taken into custody and thereafter, he has approached this Court for the grant of post arrest bail through this application.
2. As per allegations contained in the complaint lodged by Mst. Robina Iqbal, she after obtaining divorce from Raja Tauqir Ahmad, contracted second marriage with the petitioner at Islamabad on 6-7-1991, and out of this wedlock a boy, namely, Shozab Khan was born on 12-8-1992. The petitioner allegedly, during the existence of his marital-tie with Mst. Robina Iqbal complainant, contracted marriage with Mst. Tania, daughter of the complainant from her previous husband, namely Raja Tauqir Ahmad. Consequently, a case under Article 4/10 of Ordinance VII of 1979 was registered against the petitioner at Peshawar and it was still under investigation, when the petitioner with a view to dislodge the factum of his marriage with the complainant, tampered his Nikahnama with the complainant as well as the record pertaining to the birth of her son, namely, Shozab Khan available in the P.I.M.S., Islamabad. The bail application of the petitioner was dismissed by the learned Sessions Judge with the observation that Nikah Khawan has admitted his signature on the Nikahnama made available to the police and that the marginal witnesses also acknowledge the correctness thereof. Hence the remaining witnesses being not traceable, their signatures on the Nikahnama still required verification. It was further observed that the birth certificate of Shozab Khan issued by P.I.M.S. On 20-4-1996 bear the name of the petitioner as his father. The documents in custody of police showing the stay of the petitioner with the complainant as her husband in Hotels and Rest Houses were considered as an additional proof in support of the claim of valid marriage between the parties. Learned Sessions Judge further taking into consideration the attending circumstances, observed that the complainant is legally wedded wife of the petitioner and his marriage with Mst. Tania daughter of the complainant from her previous husband was void. The certificate showing Raja Touqir as husband of Mst. Robina Iqbal who is in abroad has been disowned by Nasir Saeed his brother.
3. Learned counsel for the petitioner contends,
(i) That the claim of marriage of the complainant with the petitioner was not found based on truth during the two successive investigations conducted by the local police and the D.S.P. Circle.
(ii) That a suit for jactitation of marriage with permanent injunction filed by the petitioner against Mst. Robina Iqbal is pending in the Civil Court at Islamabad wherein the petitioner denying the claim of the complainant pleaded that motive behind the false claim of marriage was to blackmail the petitioner and defame him through the use of machinery of criminal law with ulterior motive.
(iii) That Mst. Tania Tauqir, wife of the petitioner denying the claim of her mother filed a Writ Petition No,66 of 1998 before this Court for the quashment of the F.I.R. In the present case. In view of the specific plea of preparing a forged Nikahnama by the complainant, the writ petition was disposed of with the observation on the assurance given by the learned Assistant Advocate-General that the Investigating Officer will also record the version of the petitioner before coming to some logical conclusion.
(iv) That the application bearing Criminal Miscellaneous No,1101/B-of 1997 under section 561-A, Cr.P.C. Filed by the petitioner for the quashment of the order of the learned Sessions Judge relating to the paternity test of the boy, was dismissed by this Court vide order dated 14-11-1997 and the same having assailed before the Honourable Supreme Court of Pakistan through Criminal Petition No,163 of 1997, was not interfered and the leave petition was disposed of with the observation that the trial Court at subsequent state of the trial can decide whether the paternity test was necessary or not as the earlier order after filing challan has become ineffective.
4. The controversy between the parties regarding the existence of marriage between them at the time when the petitioner contracted marriage with Mst. Tania Tauqir, daughter of the petitioner is an extremely dedicated matter to be looked into very carefully. There is no cavil to the proposition that the marriage with a woman within the-prohibitory decree is not possible in Islam. Learned Sessions Judge has rightly placing reliance on Sura Al-Nisa concluded that such marriages are void. However, this Qur'anic sanction being always subject to proof cannot be referred to merely on the basis of allegations. The complainant placing reliance on the documents of Nikahnama and birth certificate of Shozab Khan, allegedly issued by P.I.M.S.' Islamabad has claimed her marriage with the petitioner, whereas the petitioner has refuted this claim through filing of a suit for jactitation of marriage. The claim and the counter-claim being based on a disputed document, the question of fact cannot probably be ascertained in its true perspective with certainty, unless the respective stand is established by the parties before the concerned forum. The expression of definite opinion in terms of existence of a lawful marriage or a false claim of marriage in view of the specific pleas raised by the parties and the circumstances can be given and such opinion can cause serious prejudice to the cases of either party. The possibility of sexual relation of the petitioner with the complainant before entering into marriage with her daughter, namely, Mst.
Tania Touqir cannot be excluded, but visualizing the situation in totality a reasonable doubt is created in the mind regarding the truth in the claim of the complainant as no true Muslim will contract marriage with mother and daughter together and like to indulge in fornication as alleged by the complainant. It is not understandable that if actually the petitioner contracted marriage with the complainant, what protected him from indulging in a major sin through performance of Nikah with her daughter. Therefore, unless the alleged Nikahnama is proved by the marginal witnesses through their statements in the Court, its genuineness being under challenge cannot be declared valid. Similarly, the birth certificate of Shozab Khan as such is neither a proof of the marriage inter se the parties nor the parentage of the boy, unless the same is proved through the evidence and the factum of marriage is established on the record. The contention of the learned counsel that in the given circumstances the allegations of commission of offence under section 468/471, P.P.C. Are not attributable to the petitioner as the Nikahnama in question was in custody of the complainant and as per claim of the petitioner she on the basis of this fake document made a false claim of marriage is also a matter of scrutiny.
5. Application of offence under section 4 of Ordinance VII of 1979 read with section 10 thereof cannot be pressed into service in view of the claim of the complainant of a lawful marriage. The petitioner has refused the contracting of marriage with the complainant and if ultimately it is found that he was in sexual co-habitation with the lady in any manner he alongwith the complainant could be guilty of offence under section 4 (ibid). The offence under section 10 of Ordinance VII, 1979 relates to the commission of Zina or Zina Bil Jabr which in the given facts is not applicable. The analysis of the matter would reveal that the allegation for the commission of offence under section 4 read with section 10 of Ordinance VII, of 1979 would require further inquiry whereas the alleged Nikahnama being relied upon by the complainant unless proved cannot possibly be declared as a valid document, consequently the question that how and in what manner the alleged offence of forgery was committed by the petitioner also needs detailed scrutiny.
6. Coming to the question that the complainant claiming herself to be legally wedded wife of the petitioner, it has been conceded that section 420, P.P.C. Was not applicable. The resume of the above discussion is that apparently there are reasonable grounds to believe that the petitioner has not committed the offence with which he is being charged. The controversy regarding the existence or non-existence of the marriage between the parties and the legal status of the marriage of petitioner with Mst. Robina being in dispute, the liability of the petitioner for the alleged commission of offence will be subject to proof at the trial.
7. In this view of the matter, the case against the petitioner falling within the ambit of subsection (2) of section 497, Cr.P.C., he has earned a right of grant of bail pending disposal of the cape against him. The Sub-Inspector present in Court states that the final report is still under preparation and that the needful will be done soon after completing the formalities. The final report having not submitted for the last about eight months and it being not expected to be submitted shortly, the petitioner cannot be kept in jail for an indefinite period on the basis of shaky allegations.
I, therefore, allow this application and admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lacs only) with two sureties each in the like amount to the satisfaction of the trial Court.