' This is an application filed by Mst. Elvinia alias Guddi wife of Sultan Masih, under section 498, Cr.P.C. For the grant of bail. She is accused alongwith one Ilyas Masih of an offence under section 16 of Zina Hudood Ordinance, 1979.
2. The allegations made against her are that she had gone with co- accused Ilyas Masih, and she lived with him in a quarter of bungalow situated in Akhtar Colony, Karachi, for two days and had sexual intercourse with him. Both accused were arrested from Akhtar Colony on 11th December, 1983. The applicant in her confessional-statement recorded before the A.C.M. No,1 (South), Karachi, has stated she was forcibly taken away by co-accused Ilyas Masih and afterwards, he commited Zinabil-Jabr with her.
3. Mst. Elvinia filed bail application before the Sessions Judge, Karachi, which was dismissed by Mr. Agha Rafique Ahmed Khan Durrani, Incharge Sessions Judge, Karachi, by his order dated 29th December, 1983. Hence the present application.
4. Mr. Sardar Muhammad Ishaque, the learned counsel for the applicant has contended that learned A.C.M. No,1 (South), Karachi, had recorded the confession but it is mere statement wherein she had stated that she was forcibly taken away by the accused Ilyas Masih and afterward, he committed Zina-bil-Jabr with her. No prima facie case is made out against her and the whole prosecution version is based on mis application of law.
5. Mr. Muhammad Ibrahim Memon, the learned Additional Advocate General, Sind, for the State has not opposed the bail application.
6. I have carefully considered the contentions of the parties. It shall be noticed that the embargo placed on the grant of bail by subsection (1) of section 497, Cr.P.C. In cases which are punishable with death and imprisonment for life or ten years' R.I., is not applicable to the case of minors or women or any sick or infirm persons. Their cases have been specifically excluded from the ambit of the proviso to the subsection (I) of section 497 (1), C.P.C. Which reads as under:-- S.497(1)-- When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years and the prosecution has given notice to show-cause why he should not be so released: "Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
7. It is evident, therefore, that in the case of minors, women and old and infirm persons governed by the earlier part of subsection (1) of section 497 (1), Cr.P.C. According to which bail should ordinary be granted to persons accused of non-bailable offences. With respect to such cases, i,e, cases not covered by the aforementioned embargo, the Supreme Court has held as a rule that bail be granted to the accused. Since as mentioned above the cases of women are excluded from the embargo. Mst. Elvinia alias Guddi, applicant, deserves to be granted bail in view of her sex notwithstanding the nature of the offence.
' I accept her bail application. She is admitted to bail in the sum of Rs,10,000 (Rupees ten thousand only) with two sureties each in the like amount to the satisfaction of the Sessions Judge, Karachi.