Find a Lawyer

Criminal Miscellaneous No. 3171/B of 1986, decided on 14th March, 1987.

‑‑‑S. 497(5)‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11‑‑Bail, cancellation of‑‑As per reconciliation proceedings marriage between petitioner and abductee subsisting at the relevant time, nevertheless, Sessions Judge allowing bail to accused/respondents by misreading documents and relying on a Fatwa-‑Discretion, held, not properly exercised by Sessions Judge, in circumstances‑‑Bail cancelled.

Khalid Ranjha for Petitioner.

Mian Mushtaq Hussain for the State.

Malik Shahbaz Hussain for Respondents.

Briefly stated the facts of this case are that Muhammad Hayat accused enticed Mst. Sultana accused wife of Ghulam Abbas petitioner on 3‑9‑1986. A case under section 11, Ordinance No. VII of 1979 was registered on 11‑9‑1986, at Police Station Sillanwali, District Sargodha. The two accused‑respondents were allowed bail by learned Sessions Judge, Sargodha on 13‑10‑1986 for the reason that Mst. Sultana alias Sallan was divorced by her husband on 4‑10‑1985 and that she on 3‑3‑1986 appeared before a Magistrate to state that she, having been divorced by her husband, intends to marry Muhammad Hayat. Hence this petition.

2. I have heard the learned counsel appearing for the parties and have also perused various documents which form part of this petition. The learned counsel for the respondents today filed in Court a certified copy of the plant. dated 12‑3‑ 1987 filed by Mst. Sultana in Civil Court Sargodha. It appears from various documents that on 9‑1‑1986 Ghulam Abbas petitioner and Mst. Sultana Bibi respondent No. 2 appeared before Arbitration Council. It was stated by Ghulam Abbas that he never divorced Mst. Sultana Bibi nor he wanted to divorce her. He further stated that h is wife was living with him in his house. On the same day, Mst. Sultana Bibi stated before the Arbitration Council that Ghulam Abbas was her husband and that she was living happily with him in his house. She stated that she was not divorced by Ghulam Abbas. In view of these statements, the divorce proceedings were cancelled by the Arbitration Council on 9‑1‑1986. The documents clearly indicate that on 9‑1‑1986, Mst. Sultana was living happily with her husband Ghulam Abbas and as such, there was no question of her divorce on 4‑10‑1985. The learned Sessions Judge placed reliance on a Fatwa. Firstly, the said Fatwa was not a legal document and no reliance should have been placed on the same; and secondly, the impugned order seems to have been recorded by misreading of documents by learned Sessions Judge, Sargodha.

When this petition came up for hearing before me on 7‑3‑1987, learned counsel for accused‑respondents undertook to place on record evidence to show that Mst. Sallan was divorced by her husband Ghulam Abbas. He has not been able to produce any such document. Instead he has placed on record a copy of the plaint in a suit filed by Mst. Sultana on 12‑ 3‑ 1987 seeking a declaration that her statement dated 9‑1‑1986 was forged and that she never made the said statement. I need not make any comments on the suit. It will be enough to mention that this suit was filed after adjournment of this petition on 7‑3‑1987. In view of the above discussion, I am of the view that the exercise of discretion by learned Sessions Judge, Sargodha in allowing bail to Muhammad Hayat and Mst. Sultana was not proper. The order, dated 13‑10‑1986 allowing bail to the accused‑respondents is set aside and their bail is cancelled.

Any observation on facts will have no bearing on merits of the case during trial.

The accused will be at liberty to file an application for their bail according to law at any subsequent stage.

S.G.D./G‑28/L Bail cancelled.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.