' Briefly stated the case of the prosecution is that the complainant Muhammad Siddique had joined Jamat Al-Muslameen in 1990 of which applicant Muhammad Ishtiaq was a Ameer. Thereafter, the complainant discovered that the applicant/accused was not following the Injunction of the Holy Quran and Hadees. Certain differences ensued whereupon the applicant had turned out the complainant from the Jamat as well as those members who were supporting the latter. It is also alleged in the F.I.R. That in the year 1998 the applicant had illegally dissolved the marriage of two members of the Jamat, namely Shakil Ahmed and Sumaira Begum and after 40 days on 6-6-1998 had himself entered into a Nikah with Sumaira. At that time Sumaira was pregnant from Shakil which pregnancy was subsequently aborted. It is also alleged that Sumaira entered into this Nikah with the permission of her father Muhammad Sultan and brother Shahid Ali and in the Nikahnama she is shown as a divorcee which is incorrect as Shakil had never divorced her. Even otherwise the marriage was illegal as Sumaira had never completed her Iddat period before entering into the same with the applicant. When Shakil came to know that his Nikah could not be cancelled without Khula he had filed a suit for restitution of conjugal rights which was withdrawn by him upon receiving a cheque of rupees two lacs, from members of the Jamat. Hence the case against the applicant and her co-accused under section 10(2) of the Zina Ordinance etc.
2. Based on the foregoing facts learned counsel for- the applicant has firstly argued that the F.I.R. Is delayed since the incident is said to have occurred in 1998 when the marriage of the applicant was solemnized with Sumaira, whereas the F.I.R. Was lodged in November, 2001. As the delay has done unexplained prima facie, it would mean that the entire case is doubtful. Secondly learned counsel has submitted that at the moment there is no evidence against the applicant except the F.I.R. In question. As to the alleged dissolution of the marriage by the applicant between Shakil and Sumaira, learned counsel has not supported the same as it is not in accordance with law. On the other hand he has submitted that in fact Shakil had sworn an affidavit to the effect that he had divorced Sumaira on 15-2-1997 as per copy of the same which is on record. Hence prima facie Sumaira had undergone the Iddat period as admittedly the applicant married her in June, 1998.
3. Learned counsel has further submitted that Shakil had withdrawn the suit for restitution of conjugal rights on 5-11-1998 which would establish that in fact the same was frivolous and false.
Finally learned counsel submitted that as per Allah Dad v. Mukhtar and another (1992 SCM R 1273) the minimum period of Iddat is not 10 days. Rather three period menstruation which can be 39 days. Hence per learned counsel,in any event it is quite possible that Sumaira had undergone three periods of menstruation before she married the applicant event if it be considered that the marriage was dissolved on 26-4-1998 by the applicant which is the case of the prosecution. He has also submitted that per settled law the offence of Zina cannot be proved if the parties were under the genuine impression that they were validly married when such offence was allegedly committed.
4. On the other hand Mr. Shafi Muhammadi, learned counsel for the complainant has firstly submitted that notwithstanding the legality or otherwise of the dissolution of the aforesaid marriage, on 26-4-1998, prima facie it is established that the complainant was lawfully married to Sumaira at least upto that date. Hence the applicant's marriage with Sumaira on 6-6-1998 within 40 days of such dissolution was unlawful since the compulsory Iddat period of 90 days had not been completed. In this respect he has submitted that Allah Dad v. Mukhtar and another (supra) cited by Mr. Khawaja Naveed Ahmad can be distinguished since the facts in that case were different. Secondly learned counsel has submitted that the complainant, Shakil had totally resiled from the affidavit in question wherein he has stated that he had divorced Sumaira in 1997. In this regard he has submitted that there is no date on this document except for the day viz. 18th Ramzan without mentioning the year which is suspect in the eye of law at this stage. Hence learned counsel has prayed that the bail application be dismissed.
5. Mr. Arshad Lodhi, learned A.A.-G. Has supported the argument of Mr. Shafi Muhammadi, Advocate.
6. I have heard both the learned counsel as well as the learned A.A.-G. My conclusions are as follows:-
7. It would be seen that the prosecution's case is mainly based upon the F.I.R. In question whereby it is alleged that the Nikah with Sumaira was performed after the applicant had unlawfully dissolved the marriage between the Shakil and Sumaira as he had no power to do so. Secondly even if this was accepted the subsequent marriage of Sumaira with the applicant without observing the compulsory Iddat period of 90 days was unlawful and hence the parties are living in sin. It is also the case of the prosecution that the affidavit sworn by Shakil to the effect that he had divorced Sumaira in 1997 has been disowned by him and so also that upon coming to know of the unlawful dissolution of the marriage between himself and Sumaira, Shakil filed a suit for restitution of conjugal rights against Sumaira which was withdrawn by him upon being pressurized to do so. This again established, prima facie, that he remained married to Sumaira and he is still her husband as he had never divorced her.
8. In my opinion, whether or not Sumaira had been divorced by Shakil in 1997 is a question of further inquiry since only the learned trial Court can establish this fact in the circumstances of the case.
Secondly it would be seen that the F.I.R. Is delayed by 3 years for which no reasonable explanation is forthcoming. Consequently at this stage it cannot be ruled out that the said F.I.R. Had been lodged after consultation etc. This tentative conclusion is borne out by the fact that admittedly there is some difference of opinion, on religious matters between the applicant and the complainant. Finally it would De seen that the parties contracted their marriage in June, 1998 and are still living together as husband and wife, in my opinion, prima facie this could hardly be a case of Zina. Regarding Mr. Muhammadi's contention that at least till the date of the alleged dissolution on 26-4-1998 Shakil and Sumaira continued to be lawfully married and hence the applicant's marriage with Sumaira on 6-6-1998 without observation of 90 days Iddat period was unlawful, suffice it to say, that the proper procedure for dissolution of marriages is prescribed under the Muslim Family Law Ordinance 1961. Hence I have no difficulty in holding that the dissolution in question is not valid in the eyes of law. Consequently it would be futile to consider whether or not the compulsory Iddat period was undergone by Sumaira before she married the applicant.
' For the foregoing reason, I would grant bail to the applicant provided he furnishes solvent surety in sum of Rs,100,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
Application stands disposed of.