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Criminal Miscellaneous No. 1334-B of 1983, decided on 2nd June, 1983.
-- S. 497-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10-Bail--Accused giving birth to twin daughters after six months of marriage with co-accused-In absence of direct evidence of commission of Zina by accused, fact, held, not sufficient by itself to give rise to inference that accused had sexual intercourse with each other-Bail granted.
Ch. Muhammad Abdul Saleem and Ghaus Muhammad Chaudhry for Petitioners.
Nazar Muhammad Dogar for the State.
Bashir Ahmad and Mst. Kausar Parveen petitioners have moved this petition for bail in a case registered against them under section 10 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979. F. I. R. version is that Bashir Ahmad petitioner had illicit relations with Mst. Kausar Parveen as a result of which she became pregnant. Bashir Ahmad petitioner applied for permission to contract a second marriage with Mst. Kausar Parveen which was accorded on 24th June, 1982 but only four months and six days thereafter Mst. Kausar Parveen gave birth to twin daughters on 30th October, 1982.
2. It is admitted by both the parties that Mst. Kausar Parveen was divorced by her former husband on 17th January, 1982 and twin daughters were born on 30th October, 1982.
3. The learned counsel for the petitioners contends that-the petitioners entered into a Sharie Nikah after the expiry of the period of Iddat on 20th April, 1982. Referring to notes under para. 340 of the Principles of Muhammadan Law by D. F. Mulla, he submits that a child born after six months from the date of marriage is presumed to be legitimate. He further submits that if it be assumed that the petitioners had entered into a marriage contract before the expiry of the period of Iddat, the marriage would still be not void, but only irregular, and the issue of such a marriage would be legitimate. To support the contention he has referred to clause (c) of sub-para. (3) of para. 264 and clause (iii) of sub-para. (2) of para. 267 of the Principles of Muhammadan Law by D. F: Mulla. The learned State counsel has opposed the prayer for bail.
4. There is no direct evidence of the commission of Zina by the petitioners. The birth of the twin daughters on 30th October, 1982 is not sufficient by itself to give rise to the inference that the petitioners had bad sexual intercourse with each other. In the circumstances, I feel inclined to the view that the case of the petitioners needs further inquiry. Consequently, I admit them to bail in the sum of Rs. 10,000 each with one surety each in the like amount to the satisfaction of Assistant Com missioner, Toba Tek Singh.
M. Y, H. Bail accepted.
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