' Mst. Shamim Mai, the petitioner through the instant petition seeks post-arrest bail in case F.I.R.
No,60 date 26-2-2003, under sections 16/10 offence of Zina (Enforcement of Hadood) Ordinance VII of 1979, registered with Police Station, Qureshi, District Muzaffargarh.
2. Briefly the prosecution case as per F.I.R. Is that about 15 days prior to 26-2-2003 i,e, the date of registeration of the case Yar Muhammad and others had enticed her away from the house of her father/complainant Nazar Hussain. She later on has been arrayed as an accused being consenting party to Zina.
3. It has been contended on her behalf that she has falsely been roped in; that Riaz Hussain, her previous husband 9n 24-10-2002 had divorced her by way of deed in writing and after the expiry of Iddet period she has entered into valid Nikah with one Muhammad Zulqarnain on 10-2-2003 and, thereafter, had been living with him as his wife and so has committed no offence; that when Riaz Hussain did not desist from claiming her to be his wife and subsistence of his marriage with her she had brought suit of jactitation of marriage against him, which is still pending adjudication before the competent Family Court and so far as no verdict has been returned therefrom and hence her case has become one of further inquiry into her guilt; that she is woman and so 1st proviso to section 497(1), Cr.P.C. Is also attracted to her case; and that she is behind the bars and previous non-convict.
4. Conversely, the learned state counsel assisted by the learned counsel for the complainant has opposed the petition on the ground that she of her own accord had eloped with her co-accused Muhammad Zulqarnain and thereafter, had indulged in Zina with him; that her husband Raiz Hussain had never divorced her and the alleged divorced deed is forged and fictitious one; that during the subsistence of her marriage with Riaz Hussain, her subsequent Nikah with Muhammad Zulqarnain and living with him is certainly Zina-bil-Raza on her part; and that the offence is heinous in nature.
5. I have carefully considered the submissions made from both the sides with the help of available record.
6. As is obvious from the above position that she has pleaded to have validly entered into Nikah with the aforesaid Zulqarnain after divorce to her by her previous husband, Riaz Hussain and expiry of Iddat period, thereafter.
7. She admittedly has brought the suit for jactitation of marriage against the complainant and others including Riaz Hussain. The same statedly is pending adjudication before the competent Family Court.
8. I have not the least hesitation in holding that the question of validity or otherwise of her Nikah with said Zulqarnain is to be determined by the competent Family Court. The verdict is yet to be returned therefrom. Hence, her case certainly has become as one of further inquiry into her guilt. So the same is covered under subsection (2) of section 497, Cr.P.C. Besides than this, she is woman.
Hence 1st proviso to section 497(1), Cr.P.C. Is also attracted to her case.
9. She is behind the bars and stated to he previous non-convict. In these circumstances, I find that the case for her enlargement on bail has been made out. The petition, therefore, is accepted and she is admitted to bail provided she furnishes bail bonds in the sum of Rs,50,000 (Rupees fifty thousands) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Muzaffargarh.