1. The applicant Mst. Allah Jiwai who is facing trial under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (herein after referred as the Ordinance) has prayed for her release on bail.
2. The prosecution case against the said applicant is that the complainant Bashir Ahmed who is married with her, being Mureed of the Dargah of Bherchundi Sharif took her with other family members for usual visit to the said Dargah about 4 months prior to lodging of the F. I. R. After about 2/3 months stay there the complainant returned to his village leaving the applicant at the Dargah.
2. After about a week when he went to fetch her, she was not available there. He was however informed that she had gone away with Karamullah Pitafi a right hand man of the Pir of Bherchundi Sharif. He also learnt that she had developed illicit relations with the said Karamullah Pitafi. Having failed to trace out Karamullah, the complainant returned home and informed his witnesses. Once again he accompanied by his witnesses went to the Dargah and appraised Pir Abdul Khalique about the elopement of his wife with Karamullah. The said Pitafi Pir advised him to refrain from lodging report with the police, promising that he would use his influence to have his wife restored.
3. Again on 10th July, 1983 the complainant approached the above Pir for return of his wife, who however told him that since Karamullah had taken her away to some unknown place, he was free to do whatever he liked. Accordingly he lodged the F. I. R. On the same day. A few days later the applicant was arrested by police. She first moved bail application before the Sessions Judge but after her application was rejected by the said Judge, she has preferred the present application.
4. Mr. Shaikh Ayaz who represents the applicant has contended that on 15th June, 1983 her father Ahmad in consultation with the Pir of Bherchundi Sharif got the applicant married with Karamullah Pitafi and after the said marriage she had been living with her husband. He has further stated that in the second week of March, 1983 the father of the applicant alongwith some others came into the house of Karamullah in his absence and forcibily took away the applicant from the house alongwith her clothes and ornaments and wrongfully confined her into the house of complainant with a view to pressurize Karamullah to pay off the loan due against him. The learned Advocate further stated that Karamullah filed direct complaint in the Court of Civil Judge and F. C. M., Mirpur Mathelo whereupon the Court issued search warrant in execution of which the applicant was secured by police from the complainant's house. As she was legally wedded wife of Karamullah Pitafi she expressed her desire to go with him. Consequently she was allowed by the Court to go with him. The learned counsel has disputed the allegation that the applicant is wife of the complainant Bashir Ahmad. In this connection he has relied upon the certificate of the Chairman, Union Council which according to him shows that the alleged nikah of the complainant with the applicant is not entered in the Nikah Register maintained by Moulvi Din Muhammad of their village.
5. On perusal of the impugned order whereby the learned Sessions Judge turned down the applicant's prayer for bail, it appears that the learned Judge relying on the police statement of the applicant has taken the view that since her marriage with the complainant is admitted by her, no material has been placed on record to show that the said marriage has been dissolved The learned Judge has further observed that so far the applicant's alleged marriage with Karamullah is concerned, there is no legal proof as no nikahnama has been produced. The learned Judge has, therefore expressed the view that in the above circumstances if the applicant is living with Karamullah, they are deemed to be living in adultery.
6. I am afraid. I cannot endorse the views expressed by the learned Sessons Judge First of all the police statement of the applicant which has been made the basis of the learned Sessions Judge's finding is not admissible in evidence and as such cannot be looked into even for deciding the bail application. With its exclusion from consideration, the so-called admission of the applicant about her marriage with the complaint would disappear. On the other hand she has vehemently denied the factum of the marriage with the complainant. It is alleged on the behalf that nikahnama produced by the complainant is a forged document. To reinforce this argument reliance has been placed on the certificate of the Chairman, Union Council showing that there is no entry of the complainant's nikah with the applicant in the nikah register maintained by the concerned nikah register. Additionally the nikahnama of the applicant's marriage with Karamullah pitafi has been placed on record.
7. In view of above material it is apparent that applicant's nikah with complainant and Karamullah is disputed. In such situation if no satisfactory explanation has been furnished for the delay in lodging the F. I. R. The delay could not be easily overlooked for considering the bail application.
8. Even if the factual assessm ent made by the learned Sessions Judge with regard to the applicant's two nikahs were accepted, his views that the admission of the applicant that she and Karamullah are living together as husband and wife would be considered as an admission of adultery are clearly erroneous. It may be observed that for the purpose of proving the offence of zinah, as is required by section 7 of the Ordinance there should be clear and straight forward admission on the part of the accused that either they have committed the adultery or are living in adultery. In the instant case the applicant's claim that she is the legally wedded wife of Karamullah and they are living as husband and wife cannot be treated as admission on her part of adultery. Until the case is finally decided and the Court has come to definite conclusion on the question of their marriage, it would be premature to draw any adverse inference about the applicant and co-accused Karamullah living together.
9. Apart from above it cannot be overlooked that the applicant is a woman and her case for the purpose bail is covered by first proviso to subsection (1) of section 497, Cr. P. C. Of course on the strength of the said proviso she cannot claim bail as a matter of right. However, by enacting the said proviso the intention of the Legislature appears to be that bail should invariably be granted to a woman accused unless any special circumstances exist on record warranting refusal of bail to her. The learned counsel appearing on behalf of the respondents have not been able to point out any such circumstances. On the contrary the learned A. A,-G. And learned counsel appearing on behalf of the applicant's father have no objection to grant of bail. However, it was urged by the learned counsel for the appellant's father that she should be allowed bail on the condition that either her father or any of the latter's relatives should stand surety for her. In this connection reliance has been placed on Ma. Kulsoom v. Rehmat Ali and another wherein it was observed : "In propriety, it should be her husband, her parents, her relations as the case may be, but certainty not her paramour who would himself be an accused, associates of her paramour or such strangers to her who may lead her astray and even exploit their position as surety by putting her in fear that they would get their bail bonds cancelled in case she did not act according to their evil designs.
10. Safeguards against such eventualities are a must for a moral society. It may however, be added that respectable persons of the locality who are held in high esteem by the people of that area may also stand surety if they are so willing."
11. In view of above discussion I am of the opinion that the case of the applicant calls for further enquiry. Accordingly bail was allowed to her E by short order, dated 19th October, 1983, for reasons to be recorded separately. Following the authority quoted above the condition was attached for bail that neither any relation nor any friend of co-accused Karamullah shall be accepted as surety.
12. Above are the reasons in support of the said order. 1984 P Cr. L J 1411