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Criminal Miscellaneous No. 506-B of 1984, heard on 27th March, 1984. (a) Criminal

-- S. 497/498-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11-Bail-Offence of Zina-Merely because another nikahnama was prepared and a suit for jactitation of marriage instituted, held, would not in every case be covered by provisions governing grant of bail in cases calling for further inquiry---Concept of further inquiry to rest upon solid foundation --Court cannot to go into merits of case and to give a finding thereon-Scope of exercise of powers under Ss. 497 & 498, Cr. P. C. extended only to find out prima facie case and to ascertain whether reasonable grounds existed to believe that accused was not guilty of offence---Case, held, fell within prohibitory clause of S. 497, Cr. P. C. in circumstances.

Shahnaz Iqbal Adil v. State 1982 P Cr. L J 123 and 1984 P Cr. L J 129 ref.

-- S. 497/498-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11 -Bail--Offence of Zina-Evidence yet to be recorded by trial Court and grant of bail likely to amount to encourage illicit love affair and fornication--Challan already submitted in Court---No case of grant of bail based on concept of further inquiry made out-Bail refused in circumstances and trial Court directed to proceed on expeditiously on day to day hearing --Bail application to be considered by trial Court if after recording of evidence trial Court feels that bail should be granted to accused

1984 P Cr. L 1 129 and P L D 1984 Lah. 67 ref.

-- S. 497/498-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11-Bail-High Court does not function in vacuum while exercising jurisdiction in respect of grant or refusal of bail-Court, held, bound to take note of social and moral environment, prevailing in society.

A. W. Butt for Petitioners.

Muhammad Akhtar Shabbir for the State.

The petitioners have invoked the jurisdiction of this Court for the grant of bail under section 498, Cr. P. C. They have been involved in a case registered against them and others by Police Station Gunjial under the provisions of section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. According to the maker of the F. I. R. Surkhroo Khan, a Naik in Pakistan Army, his wife Mst. Gul Parveen, petitioner No. 2, had disappeared from the house of his parents while he was posted at Sargodha. The disappearance of Mst. Gul Parveen, was reported to the com plainant by one Muhammad Nawaz, a brother of Mst. Gul Parveen. The complainant on hearing such news returned to village to make efforts for locating the whereabouts of his wife Mst. Gul Parveen. The complainant was informed that the sister of co-accused Mst. Sahib Khatoon, being a relation of the complainant, was on visiting-terms with Mst. Gul Parveen. According to the complainant, a month before the lodging of the F. I. R. he was informed by Muhammad Hayat son of Ghulam Sarwar and another Muhammad Hayat son of Muhammad Khan, who were labourers in Karachi, that they had seen Mst. Gul Parveen with Khan Muhammad co- accused, Muhammad Iqbal and Mst. Sahib Khatoon roaming in Karachi. The complainant approached respectables for the return of Mst. Gul Parveen and Mst. Sahib Khatoon and Muhammad Iqbal promised to arrange the return of Mst. Gul Parveen by July, 1983. According to the complainant Mst. Gul Parveen was not returned. Compelled by the aforesaid circumstances, the complainant lodged the F. I. R. with the police station, on the basis of which a case was registered.

3. On 18th of August, 1983, Mst. Gul Parveen was recovered from the house of co-accused Muhammad Khan from Karachi and consequently the petitioners were arrested.

4. The petitioners claim to be husband and wife and in support of their claim they have produced a nikahnama. On the other hand, the complainant has also produced a nikahnama which is prior in time to that of the petitioners. Allegedly the nikah between complainant and Gul Parveen was performed by one Muhammad Nawaz, maternal-uncle of Mst. Gul Parveen, a Lambardar and Imam of the village mosque and he affirmed this fact before the Sessions Judge. The complainant further produced a certificate issued by the Army Authorities, and in the said certificate it was certified that on the basis of the information lodged with the Army Authorities based on nikahnama as well, Mst. Gul Parveen was lawfully-wedded wife of the complainant and on the aforesaid basis residential abode had been allotted in favour of the complainant.

5. The learned counsel for the petitioners drew my attention to a civil suit allegedly filed by Mst. Gul Parveen for jactitation of marriage against the complainant, and also to the contents of the statement of Gul Parveen recorded under section 164, Cr. P. C. in which she disowned her marriage with the complainant, and had asserted that she was the lawfully wedded wife of the co-accused Muhammad Khan.

6. Keeping in view the peculiar circumstances of the case, I was anxious to know about the further abode of Mst. Gul Parveen in case of her release on bail, because, in the event of the truthfulness of the claim of the complainant, I could not have allowed the perpetuation of illegal fornication. Led by this consideration I sent for the father of Mst. Gul Parveen, who has appeared before me and has declined to stood surety for his daughter Mst. Gul Parveen. According to the father, the petitioner Gul Parveen was lawfully-wedded wife of the complainant.

7. The learned counsel for the petitioners contended before me that it was a case of further inquiry within the meaning of section 497 (2), Cr. P. C. and, therefore, the petitioners were entitled to bail. In support of his contention he relied upon a judgment of this Court Shahnaz Iqbal Adil v. State (1982 P Cr. L J 1231). In this cited case a woman seeking pre-arrest bail was charged for marrying another person during the existence of first marriage. The woman had disputed her nikah and had also denied her signatures on nikahnama and a suit for jactitation of marriage had been filed and this Court admitted Mst. Shahnaz Iqbal to bail holding that the case fell within the purview of further inquiry clause of section 497, Cr. P. C. Respectfully I would differ with the ratio of the case, because, the concept of further inquiry has to rest upon a solid foundation and merely, because, another nikahnama has been prepared and a suit for jactitation of marriage has been instituted, would not in every case, be covered by the provisions governing the grant of bail in cases calling for further inquiry. I am conscious of the fact that in exercise of the jurisdiction for the grant of refusal of bail, I. cannot go into the merits of the case and to give a finding, thereon, and the scope of the exercise of such powers extends only to find out prima facie case, to ascertain whether reasonable grounds exist to believe that the petitioners are not guilty of an offence punishable in the nature provided for in subsection (1) of section 497, Cr. P. C. After anxious consideration I have come to the conclusion that the case also falls within the prohibitory clause of section 497, Cr. P. C. I cannot be oblivious of the social and moral environments prevailing in the community for which law is to be administered. Enforcement of Zina (Hudood) Ordi nance was promulgated keeping in view the age old tradition and the moral values enunciated by Islam.

8. Without expressing any opinion on the merits of the case lest it may prejudice the case of either party, I am of the view that no prima facie case for the grant of bail on the basis of further inquiry concept is made out. Because, on sheer pretext of another nikahnama, the present case would not fall within the scope of further inquiry clause. This Court does not function in vacuum while exercising jurisdiction in respect of the grant or refusal of bail, and I am bound to take note of social or moral environ ments prevailing in the society, therefore, in my view, at this stage, when as yet no evidence has been recorded by the trial Court the grant of bail would amount to encouraging illicit love affair and fornication. Further- D more, the defence plea of nikah between the petitioners can only be consi dered and judged by the trial Court. I cannot give any finding at this stage.

9. The learned counsel for the petitioners also invited my attention to the fact that in the nikahnama of Mst. Gul Parveen with the complainant district Khushab has been written, whereas, on the relevant day in the year 1981, Khushab had not become a district. I am afraid, I cannot hold any inquiry nor 1 can give any finding. Suffice it would be to refer to the statement of Muhammad Nawaz, who had performed the nikah ceremony.

10. In support of his arguments the learned counsel also placed reliance on two cases reported in 1984 P Cr. L J 129 and 352 and also P L D 1984 Lah. 67. The facts in all these cases are distinguishable, and thus, do not help the petitioners at all. The challan, in this case, has been submitted. I would, therefore, direct the learned trial Judge to proceed with the trial expeditiously on day to day basis.

11. However, the refusal to grant of bail to the petitioners on account of reasons stated above would not be a bar for the trial Court to grant bail, if after recording some evidence, the learned trial Court feels that the bail should be granted.

12. With these observations this petition is dismissed.

M. Y. H. Bail petition dismissed.

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