' IJAZ AHMAD CHAUDHRY, J.---Throughthis petition under section 497(5), Cr.P.C. Imam Bakhsh petitioner seeks cancellation of bail of respondent No,2, who was granted bail by learned Additional Sessions Judge, Multan vide order, dated 16-6-2004 in case F.I.R. No,158, dated 19-5-2004, registered under sections 16/10 Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 read with section 494, P.P.C. At Police Station Makhdoom Rasheed, Mukm.
2. As per contents of the F.I.R. Got lodged by Imam Bakhsh and complainant/petitioner briefly the facts are that he was married with Mst. Shamim alias Shammo Mai and four children born out of their wedlock. However, after 14 years of marriage life, Mst. Shamim Mai alias Naseem Mai respondent No,2 developed illicit liaison with one Bashir Ahmad co-accused through one Mst. Nazir Bibi and on 18-6-200-3 when the petitioner returned to his home, he found his wife Mst. Shamim Bibi alias Naseem Bibi missing from the house. After search he met Sarwar and Zahoor P. Ws, who told him that Mst. Shamim Bibi alias Naseem was going with Bashir Ahmad Chadhar to Multan on a bus. He further allegedin the F.I.R. That on 19-6-2003 when he along with the witnesses, went to the house of Bashir Ahmad for the return of his wife, he came to know that Mst. Shamim had contracted marriage with Bashir Ahmed after changing her name and showing her previous husband as dead person. Bashir Ahmad refused to return Mst. Shamim Bibi back and was guilty of committing zina with her. It has been further alleged in the F.I.R. That Mst. Shamim Bibi alias Naseem Bibi also instituted a suit for jactitation of marriage in the Family Court and she has changed her name as Naseem Bibi and was pregnant of 7 months.
3. Learned counsel for the petitioner contents that respondent No,2 while posing herself as Mst.
Naseem moved application for bail in the learned Sessions Court, Multan, which has been accepted by the learned Additional Sessions Judge, Multan on two grounds that respondent No,2 has filed a suit for jactitation of marriage in which she has alleged that she was wife of brother of complainant Imam Bakhsh who died in an accident and the offence does not fall within the prohibitory clause which is wrong interpretation of section 10 Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979, hence, the to respondent No,2 may be cancelled.
4. On the other hand, learned counsel for respondent No,2 opposes this application on the ground that she was not abducted by any body but she is living separately with her own accord and has also filed a suit for dissolution of marriage. It is further contended that respondent No,2 was released on bail on 16-6-2004 and since then she has not misused the concession of bail who also being woman was entitled to the grant of bail, hence the application for cancellation of her bail may be dismissed.
5. I have heard the learned counsel for the parties and also perused the record with due care and caution. The petitioner has claimed that respondent No,2 was his wife and out of the wedlock four children were born. Said Imam Bakhsh filed W.P. No,2057 of 2004 in the Court and on the direction of this Court vide order, dated 19-5-2004 instant case was registered, hence, delay has been properly explained by the petitioner. Moreover, respondent No,2 had claimed herself as Mst.
Naseem Bibi wife of Bashir Ahmad, in the application moved before the learned Sessions Judge for grant of bail under section 497, Cr.P.C. But in the present application she has claimed that she is wife of Imam Bakhsh and was not married with Bashir Ahmad nor she was abducted by anybody.
The learned Additional Sessions Judge, Multan has granted bail after arrest to respondent No,2 on the ground that she had filed a suit for jactitation of marriage and the offence did not fall within theprohibitory clause. Both these grounds were not available to respondent No,2 for grant of bail as the suit for jactitation of marriage filed by the A petitioner posing Naseem Bibi was dismissed before 16-6-2004 when the I bail was granted and from the facts and circumstances of the case offence under section 10(2) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) is prima facie made out as respondent No,2 earlier claimed her to be wife of Bashir Ahmad in her application for bail as well as the suit filed by her for jactitation of marriage in the Court of Judge Family Court on 9-9-2003 which was dismissed on 8-1-2004 but she has taken different stand today admitting her to be wife of the petitioner. She has also filed a suit for dissolution of marriage against the petitioner which is pending in the Court of competent jurisdiction. Therein it has been admitted that she was married with Imam Bakhsh petitioner and out of their wedlock six children were born, but later on she was turned out of the house by the petitioner. There is allegation that respondent No,2 is guilty of commission of zina with the co-accused which prima facie found corroboration from different stands taken by her regarding her marriage and even after registration of the case she has given birth to two children. Moreover, she has failed to satisfy about her present abode and her remaining on bail may amount to repetition of offence. I am not in agreement with the learned counsel for respondent No,2 that there is no direct evidence regarding commission of zina as at this stage the circumstantial evidence cannot be ignored. Moreover, the petitioner cannot be benefited merely on the ground that she is a woman as even under proviso Ist to section 497, Cr.P.C. The bail cannot be claimed as a matter of right, but it is the discretion of the Court, which has to be exercised judiciously and properly. Hence, this application is accepted and bail already granted to the respondent No,2 by the learned trial Court is hereby cancelled. She shall be committed to jail.
Bail cancelled.