1. ' The applicant Muhammad Shaheed is facing trial for offence under section 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the Court of Sessions Judge, Karachi East.
2. ' In short, the facts of the case are that applicant Muhammad Shaheed is a "Muazin" in a mosque.
3. He used to visit the house of the complainant to recite Verses from Holy Qur'an for the purpose of treatment and, thereafter, he developed intimacy with Mst. Asma, the daughter of the complainant lady. It is alleged that a Nikah was performed between the applicant and Mst. Asma but the Mohallah people raised objection on account of which the applicant pronounced divorce.
4. Subsequently, on obtaining a Fatwa, the applicant remarried Mst. Asma. The allegations are that the said Nikah with Mst. Asma without the intervening marriage was invalid and hence, they are guilty of offence under section 16 of the Offence of Zina (E.O.H.) Ordinance, 1979.
5. ' The learned counsel for the applicant has contended that the first marriage was not consummated, hence, the intervening marriage was not necessary. The learned counsel has relied on the Book. "The Code of Muslim Personal Law" (Vol.I) by Dr. Tanzeel-ur-Rehman and cited section 121 of the said Code at page 464 which provides that in case the first marriage remains unconsummated, the second marriage with the same lady without the intervening marriage could be valid. Even otherwise, there are two Fatwas and the learned A.A.-G. Has rightly contended that till it is ascertained as to which of the Fatwas is correct, the case of the applicant requires further inquiry .
6. ' In these circumstances, I hold that the applicant is entitled to be released on bail as his case is of further enquiry. This application is, therefore, allowed and the applicant is ordered to be released on bail on his furnishing one solvent surety in the sum of Rs,1 lac (Rupees one lac only) and P.R.
7. Bond in the like amount to the satisfaction of the trial Court.