Petitioners seek confirmation of pre-arrest bail granted to them in a case registered vide FIR No, 371 dated 29.5.2003 under Section 420/468/471 PPC read with Section 10/7/79 of Offence of Zina (Enforcement of Hadood) Ordinance 1979 P.S. Shandara Lahore. The case has been registered on the statement of Mst. Zarina who is mother of Petitioner No,, 1 and Petitioner No, 4.
2. The prosecution story briefly stated is that on 6.3.2003 complainant's daughter Petitioner No, 1 suddenly disappeared and she also took alongwith her jewellery value of which was Rs, 60000/- and other house hold articles valuing Rs, 20000/-.
3. On the afore-referred complaint the Addl. Sessions Judge Lahore summoned the parties.
Petitioner No, 1 took up the plea that she is legally wedded wife of Petitioner No, 2 Qaisar Yusuf, that she is sui juris and that no offence whatsoever had been committed. The case of the complainant before the Addl. Sessions Judge was that the marriage was fake, that father Rev. Daniel Yunus Petitioner No, 3 had no license to perform the Nikah in terms of Christian Marriages Act, 1872 and that the Petitioner No, 1 and Petitioner No, 2 have committed Zina.
4. Learned counsel for the petitioner in support of this petition made following submissions:--
(i) That after the death of the father Petitioners Nos, 1 and 4 who are real brother & sister a dispute arose between petitioners and the complainant who is their real mother, that since she was not happy over the marriage she has got this false case registered; (ii)That Rev. Daniel Youns Petitioner No, 3 has got a valid appointment letter from the Methodist Church of Pakistan and he was fully competent to perform the marriage. In support of the submissions learned counsel relied on Mt. Titli v. Alfred Robert Jones (AIR 1934 Allahabad 273).
(iii)That Petitioner No, 1 has filed a declaratory suit which is pending decision and the question whether the Nikah is valid or otherwise is for the Civil Court to decide and the Investigating Officer in domain of criminal law cannot assume that jurisdiction.
5. Learned counsel for the complainant oppose the petition and contended as under:--
(i) That although in terms of the Christian Marriages Act 1872 Petitioners Nos, 1 & 2 are of marriageable age and are eligible to marry but the marriage can only be performed by a person who is duly authorised in this behalf under Section 5 of the afore referred Act.
(ii)That Petitioner No, 3 had no valid license to perform marriage and the so-called certificate of marriage issued by him has no sanctity in law.
(iii)That as per the opinion given by the Bible Society the marriage performed by Petitioner No, 3 is not a marriage in the eyes of law and both the petitioners are living a sinful life.
(iv)That the offence allegedly falls within the prohibitory clause of Section 497 Cr.P.C. & in absence of anything on record to show that the prosecution is motivated by malice no case for pre-arrest bail is made out.
6. I have heard learned counsel for. the parties and have given anxious consideration to the submissions made.
7. Before touching the merits of this case it would be of relevance to refer some provisions of Christian Marriages Act, 1872 which may have an important bearing in this case. Section 4 of the said Act provides that every marriage between persons "one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. Section 5 of the said Act provides as under;
(1) by Any Orson who has received Episcopal ordination, provided that the marriage be solemnized according to the rule, rites, ceremonies and customs of the church of which he is a Minister;
(2) ....................................................................
(3)....................................................................
(4)....................................................................
(5)....................................................................
8. Learned counsel for the petitioners has placed on record a letter of appointment as Deacon issued by the Methodist Church of Pakistan (dated 30.5.99) vide which Rev. Daniel Youns Petitioner No, 3 was ordained as Deacon of Methodist Church in Pakistan in 1751 annual Conference which was held on 23 to 25.4.99 at Lahore and the letter further specifically authorised him inter alia to solemnize matrimony and administered baptism. Admittedly Rev. Daniel Younas Petitioner No, 3 has solemnized the marriage in the said capacity. The letter from the Bible Society is merely an opinion and that too, by a body, which is engaged in publication of the Holy Bible and does not have any authorization to pronounce opinion/verdicts on issues of the kind, which is mooted before this -Court today. Even otherwise the marriage primarily is a union between two sui-juris individuals the nonperformance of rituals would not invalidate the marriage particularly when Petitioner No, 3 who performed the marriage, has placed on record the requisite authorization.
9. While commenting on the merit of Section 5 referred to above the Court in Consterdine v.
Samina (AIR 1918 Lower Burma 83) at page 85 observed as under : "In other words, the section in my opinion deals only with the ceremony and person who may perform it and not with the capacity of the person on whom it is performed or with the capacity of the person who performs it, save as is expressed in the section, viz. That he should have received episcopal ordination."
The expression marriage has been defined in Strouds' Judicial Dictionary in the context of Christianity as under : "Marriage' is one and same thing substantially all the Christian world over. Our whole law of marriage assumes this" (per Lord Brougham, Warrender v. Warrender, 2 Cl. & F. 532). "I conceive that `marriage', as understood in Christendom, may, for this purpose"i,e, creating the status of "husband" and "wife as those words were used in Matrimonial Clauses Act 1857 (C. 85) "be defined as the voluntary union for life of one man and one woman, to the exclusion of all others".
10.The question whether Petitioners Nos, 1 & 2 were committing an offence within the mischief clause of Section 10 of Ordinance VII of 1979 would require a careful understanding of the penal provisions under the said law and the exceptions enumerated therein. In terms of Section 6 of afore-referred ordinance a person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married in circumstances enumerated in clause a (1) of said section which reads as under : (a)....................................................................
(b)....................................................................
(c)....................................................................
(d)with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married.
11. In the instant case Petitioners Nos, 1 & 2 were of the view that they are validly married. Hence the condition precedent for the offence alleged prima facie does not exist. The Court is also conscious of the protection given to the marriage and the institutions of family under the Constitution of Islamic Republic of Pakistan and the U.N. Convention on Elimination of all forms of Discrimination Against Women. Article 35 of the Constitution enjoins the State to protect the marriage and the family. Article 16 of the Convention on the Elimination of all forms of Discrimination Against Women reads as under: "1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and........ and in particular shall ensure, on a basis of equality of men and women-- (a)the same right to enter into marriage; (b)the same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c)the same rights and responsibilities, during marriage and at its dissolution"
For what has been discussed above, the prosecution launched against the petitioners prima facie reflects not only malice in fact but also malice in law. Resultantly this petition is allowed and the interim pre-arrest bail granted is hereby confirmed.