' Malang Shah and Mst. Tahira Batool petitioners are accused persons in case FrI.R. No,323 registered at Police Station City, Mianwali on 24-8-1999 for an offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 452/380, P.P.C. The allegation against Malang Shah petitioner No,1 was that he had abducted Mst. Tahira Batool petitioner No,2 on 23-8-1999 with the help of three others. During the investigation Malang Shah as well as Mst. Tahira Batool were found by the local police to be consenting parties and, therefore, the offences under section 452/380, P.P.0 were deleted from the F.I.R. And instead section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was added to the F.I.R. As a result of the said conclusion of the local police, Mst. Tahira Batool abductee was transformed into an accused person in this case. Resultantly both the petitioners were arrested by the local police on 3-9-1999.
Subsequently their application for post-arrest bail was dismissed by the learned Additional Sessions Judge-III, Mianwali on 8-10-1999. Hence, the present petition before this Court.
2. After hearing the learned counsel for the parties and going through the record it has been noticed by this Court that while deciding the petitioners' application for bail the learned Additional Sessions Judge had recorded the statements of both the petitioners after summoning them from Jail and the statements of the Nikah Registrar as well as Nikah Khawan were also recorded in respect of the plea of marriage taken by the petitioners. It is noticeable that both the petitioners had categorically maintained in the said statements before the learned Additional Sessions Judge that they had contracted marriage with each other of their own freewill and accord. It had been held by the Honourable Federal Shariat Court in the case of Muhammad Yousaf and another v. The State PLD 1988 FSC 22 that ordinarily an assertion of a man and a woman that they were married to each other and were living together as husband and wife is to be treated to be sufficient to establish the factum of their marriage. It was further held in the said judgment that ordinarily oral defence of valid Nikah taken by accused persons is to be sufficient unless the prosecution proves otherwise. Apart from that it had been held by the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Allah Ditta and others v. The State PLD 1989 SC 744 that where a defence of valid Nikah is taken then sexual intercourse between such parties cannot be termed to be 'wilful' Zina. Even otherwise, the question whether the Nikahnama of the petitioners was genuine or not was a question requiring fu,rther inquiry and also that the said question as yet to be gone into at the time of the trial.
3. The course adopted by the learned Additional Sessions Judge in recording evidence and conducting investigation at the stage of bail was conduct which requires some comments. In the case of Shah Gulzam and another v. The State 1989 PCr.LJ 2395 such a course adopted by a Court has been disapproved. In the present case it appears that the learned Additional Sessions Judge had embarked upon a trial within a trial while deciding a bail application. Such a course adopted by the learned Additional Sessions Judge hardly commends itself for approval. The learned Additional Sessions Judge-III, Mianwali (M. Ali Dastgir Syed) shall be well-advised to desist from such a practice in future unless the facts of a case compellingly so require. I am quite clear in my mind that the facts of the present case did not warrant the course adopted by the learned Additional Sessions Judge.
4. It may not be out of place to mention here that according to the learned Additional Sessions Judge it was a case of enticement of petitioners No,2 by petitioner No,
1. An allegation of enticement attracts the provisions of section 16 of the Offence or Zina (Enforcement of Hudood)
Ordinance, 1979 which does not attract the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. Even the local police have come to a definite conclusion that it was not a case of abduction. According to the Police Officer present in Court today it was found to be a case of consent between petitioners Nos.1 and 2 and this was why section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had been added to the F.I.R. Thus, whether the petitioners were living as validly married to each other or were living in adultery itself required further probe.
Apart from that the case of petitioner No,2 also attracts the first proviso to subsection (1) of section 497, Cr.P.C. The police officer present in Court has also informed that custody of the petitioners is no longer required for the purposes of investigation. It is settled law that bail ought not to be withheld by way of premature punishment.
5. For what has been observed above the case against the petitioners squarely attracts the provisions of subsection (2) of section 497, Cr.P.C. As the case against them calls for further inquiry into their guilt. This petition is, therefore, allowed and the petitioners are admitted to bail in the sum of Rs,50,000 (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.
6. Let a copy of this order be sent by the office to Mr. Ali Dastagir Syed, Additional Sessions Judge-III, Mianwali for his information.