KHALIL-UR-REHMAN RAMDAY, J. - Through the F.I.R, lodged by the petitioner herein, it had been alleged that Mst. Afzal Bibi was his wife and that she had been abducted by Mumtaz and others.
During the course of investigation it transpired that Mst. Afzal Bibi was .a willing and consenting party to her disappearance and to her living with Mumtaz accused. They also produced Nikahnama allegedly evidencing their marriage with each other. According to the D.S.P./I.O. This Nikahnama was found to be forged and in any case in the absence of any divorce given to Mst.
Afzal Bibi by Muhammad Shah petitioner and in the absence of any proof that she had never married to Muzammal Shah petitioner/complainant,' any subsequent Nikah was of no assistance to the said accused persons.
2. In this view of the matter Mst. Afzal Bibi was also attained as an accused person in the present case. Both these respondents were released on bail by a learned Addl. Sessions Judge at Mianwali on 24.10.1997 on the ground that the offence did not fall within the prohibitory clause; that the investigation being conducted into the matter in question which comprised offences under Sections 468/471, PPC was bad in law because the said offences were non-cognizable and could not be investigated without the prior permission of a competent Magistrate and there was in fact no order authorising the police to investigate the said offence. The reason which had been offered by the learned Addl. Sessions Judge in allowing bail to the two respondents was devoid of merit.
The accused persons guilty of Zina out of whom Mst. Afzal Bibi who was a married women is not a kind of offence which could entitle any of them to be released on bail because the offence did not fall within prohibitory clause.
3. It may be added here that due to the fact that Mst. Afzal Bibi has since been made an accused person in the present case it is obvious that she was found guilty of committing Zina with Mumtaz respondent because of her- alleged Nikah with him during the subsistence of her earlier marriage with Muzammal complainant. This would be an offence falling within the ambit of Section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which is an offence which falls within the prohibitory clause contained in Section 497, Cr.P.C.
4. The discretion exercised by the learned Addl. Sessions Judge in releasing the two respondents on bail is a discretion which is not well founded either in fact or in law. Consequently the to the two respondents through anorder dated 24.10.1997 is re-called. The two respondents shall be taken into custody in terms of Section 497(5), Cr.P.C.