' Petitioner Muhammad Jamshed has applied for post-arrest bail in case F.I.R. No,130 dated 16-5- 2002 under sections 10/16 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered with Police Station Saddar, Muzaffargarh.
2. Briefly the prosecution case as per F.I.R. Is that Mst. Farzana, the maternal niece of complainant was married to one Akhtar about 1-1/2 years ago. She out of strained relations with him came to her mother. Muhammad Jamshed (present petitioner), developed illicit liaison with her and they as a result of the same indulged in Zina. He about two months ago had enticed her away. A day prior to 16-5-2002 i,e, the date of registration of this case, in the evening, they both were going to the house of their relatives but were apprehended and were handed over to the police.
3. It has been contended on his behalf that he has falsely been implicated in the case; that his Nikah with Mst. Farzana was performed on 25-10-2001 while the complainant could not produce proof of her Nikah with aforesaid Akhtar at the time of registration of the case; that complainant has alleged that her Nikah with him (Akhtar) was performed about 1-1/2 years prior to the occurrence while the occurrence allegedly had taken place about two months prior to the registration of case, on 16-5-2002 and if this period may be calculated, it cannot be said by no stretch of imagination that it was so performed on the date given in that Nikahnama; that it is a case of two Nikahnamas and the question that which one is valid and correct is to be gone into at the time of trial; that Mst. Farzana is his legally-wedded wife and they both had been living as husband and wife and so they have committed no offence; that the complainant has forged Nikahnama showing her Nikah with said Akhtar antedate; that she had brought suit for jactitation of marriage against Akhtar and unless the same is decided, it cannot be said that she was married to him (Akhtar); that there is no direct evidence of Zina against him; and that he is behind the bars and is previous non-convict.
4. Conversely the learned State Counsel has opposed the bail application on the ground that he out of illicit liaison with Mst. Farzana has enticed her away for Zina and both had been indulging in such act which in no way is permissible.
5. I have carefully considered the arguments advanced on behalf of the parties with the help of the record.
6. It is the case of the prosecution that he (petitioner) had enticed away Mst. Farzana out of illicit liaison with her and they both had indulged in Zina. It has also been alleged that her Nikah with one Akhtar was performed and she had been living with him as his wife and thereafter out of strained relations with him she went to her mother.
7. As against the same, the contention from his side is that the 'complainant has forged Nikahnama showing her Nikah with said Akhtar antedate and she was never married to him and he and her out of their free-will had validly entered into Nikah and they have been living as husband and wife and so they have committed no offence. In support of such plea Nikahnama showing his Nikah with her has been produced. There is also Nikahnama showing her Nikah with said Akhtar. The petitioner's Nikah with her is dated 25-10-2001 and that of Akhtar with her dated 2-9-2001.
8. There is also copy of plaint in suit for jactitation of marriage brought by her (Farzana) against said Akhtar. In the same, she has disowned her Nikah with him and had affirmed the factum of her Nikah with the present petitioner.
9. It has been disclosed that she too has been arrayed as an accused in the instant case being consenting party to Zina and is in jail. .
10. Firstly, it is a case of two Nikahs. She has gone to the competent Family Court for declaration of her Nikah with Akhtar Hussain to be forged and fictitious and so ineffective. The Family Court is yet to deliver any verdict in respect of the same. Secondly she has owned her Nikah with petitioner.
11. Admittedly, there is also no direct evidence of Zina against him. So, the question that if he can be held liable for the alleged offence or not is open to further inquiry and as such his case is covered under subsection (2) of section 497, Criminal Procedure Code. He is behind the bars and stated to be previous non-convict.
12. I, therefore, accept the application and admit him to bail subject to his furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of learned Sessions Judge, Muzaffargarh/trial Court.