Mst. Shehnaz Bibi petitioner is an accused in the case registered against her and others vide F.I.R.
No.3 dated 1-1-2005 under sections 11/16/19(2)/10(2) of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 at Police Station Gomal University, D.I. Khan. She applied for bail and the learned Sessions Judge, D.I. Khan accepted the request and allowed that she may be released on bail on furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate with a condition that "one of the surety of the lady accused should be related to her in prohibited degree". This condition annexed to the order of bail has been challenged through this petition.
2. Learned counsel for the petitioner states that imposition of the condition of the type of surety was unprecedented and beyond the scope of law, therefore, such condition is required to be annulled.
He relied on 1988 PCr.LJ 564 wherein it was held that the accused person has a right to furnish surety of his own choice and under the law he cannot be compelled to produce particular person as his surety.
3. Learned counsel for the complainant, while contesting the revision petition, stated that father of the lady being related to her in the prohibited degree is ready to furnish the bail bond and that the imposition of the conditions was not something illegal.
4. I have examined the facts of this case in depth. Apparently the petitioner left the house of her parents and allegedly entered into a Nikah. The copy of Nikahnama does not show whether at the time of solemnization of the alleged Nikah, any "Wali" of the petitioner was present because no "wali" is ready to support her even till today. Even the alleged Nikahnama is defective in many respects. The occurrence has taken place on the night between 31st December, 2004 and 1st January, 2005 at Dera Iasmail Khan. It has been stated by the accused that since Nikah was solemnized on 31-12-2004 at Peshawar, therefore, no offence stood committed and the F.I.R. Was not maintainable. This statement as well as the Nikahnama is belied by the affidavit of the petitioner herself where she records that "our Nikah shall be performed under Shariah Muhammadi". This affidavit was attested by Shafi-ur-Rehman Shabab, Oath Commissioner, Peshawar on 2-1-2005. Hence the date contained in Nikahnama being 31-12-2004 is belied by the affidavit. The addresses of the witnesses of marriage are not given in detail and the Nikah Khwan is also pseudonymous. In such a situation if the Court has imposed a condition that at least one of the sureties shall be nearer relative of the petitioner was with a purpose and therefore, logical.
5. In this part of the country, the culture is somewhat different and the injunctions of religion are followed strictly. Although it is the free consent and will of the man and woman to constitute a valid Nikah but the desirability of the presence of the "wali" of the lady has the logic of providing proper consultation to the illiterate young ladies at the time of making a most vital decision about their future life and thereby the exercise of free consent can be ensured. If the condition is done away with, it will provide a licence to the morally perverted persons to abduct simple, illiterate adolescent ladies and arrange their Nikah without their free will and thereby the illegalities are apprehended to be perpetuated.
6. The Court accepting the bail application of an accused is duty bound to prescribe conditions about the type of sureties and the satisfaction of the officer accepting the surety bond, therefore, even, a routine bail order contains certain conditions between the lines. This imposition of conditions is not an illegality, rather it is a practice and a requirement of the administration of justice. If an accused is unable to furnish the sureties of the type required by the Court, he can presume that his request for grant of bail has been regretted. The Court cannot pass bail orders mechanically, rather it has to take into stock the status of the sureties, their availability in case their presence is needed by the Court, their capability of having access to the accused as well as the circumstances which provide a satisfaction to the Court that the order will not be misused for the continuation of an illegality. In the present case, if the version of the learned counsel for the petitioner is believed to be true that she has entered into a Nikah with her free consent the whole case is nullified and there is nothing left to be tried by the appropriate forum. Hence, the condition imposed by the learned Sessions Judge that on of the two sureties should at least be a close relative of the lady accused was not an illegal one. The authorities cited at the bar are distinguishable because in the case of Mst. Manzoor Bibi alias Manzooran v. The State (1988 PCr.LJ 564 Lahore), it was not an order E of the Court imposing the conditions, rather it was the desire of the complainant that the lady may be released on bail bonds furnished by her father alone. In the present case, it was not the desire of the complainant, rather it was the exercise of discretion by the Court.
7. Hence, the impugned order does not suffer from any illegality or even irregularity and so the petition is dismissed.