1. ' MUHAMMAD AEZAL ZUL LAH, J.-Leave to appeal has been sought in this bail matter from order dated 7-4-1984 of the Lahore High Court; whereby while refusing to delete a condition attached to the grant of bail to the petitioner in a case under sections 10, 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979, the High Court itself imposed a modified condition.
2. ' The allegation against the petitioner made by her own father is that she committed Zina with the co-accused Haq Nawaz. She is alleged by the complainant side to have been married to one Sajid Mahmood.
3. ' The learned Sessions Judge took note of the assertions from both the sides-the version of the accused is that they were lawfully married to each other through a duly executed nikahnama, on 23rd of January, 1984, while the prosecution case is that it was an elopement of a married woman which took place on 12th January, 1984 and that as noted earlier, the conduct of the accused after the elopement is of Zina because the petitioner was earlier married to Sajid Mahmood on 17-12- 1983. Both the parties have relied on their respective nikha namas. The prosecution inter alia also relies on an affidavit submitted by Nur Hussain the nikah khowan and an application of the petitioner wherein she levelled charges against Haq Nawaz and others for having enticed her away with a further assertion that this was done with the collusion of the police. The defence inter alia has relied upon a statement of the petitioner said to have been recorded on 5-2-1984 which it is stated supports the defence plea.
4. ' The learned Sessions Judge after taking note of all the relevant circumstances allowed bail to both the accused with a condition that the petitioner "shall be released on the bail-bond of her father"-one obvious reason for this condition was that the petitioner, as asserted before the learned Sessions Court, was pregnant and it was not known from whose loins she was carrying the child. A criminal revision having been moved in the High Court was dismissed for the reason that in case' the petitioner is allowed uncontrolled freedom when she remains charged with serious offence under Ordinance No, VII of 1979 there would be danger of the offence being repeated, in case ultimately it is found that the two accused are not lawfully married to each other. However on the assumption that the petitioner sought the removal of the condition with a bona fide intention (that her father who is the complainant in the case might be tempted to cause the harm to herself and/ or the foetus), the condition that has been modified that she would be released on bail only if the surety bond is furnished by a "person related within prohibited degree from paternal or maternal side of the petitioner."
5. ' It may also be mentioned that the learned Judge in the High Court directed that "it will be in the interest of future life of the child, to take birth, that the matter regarding has parentage is decided before his birth, the Sessions Judge, Jhelum is directed to take steps for expeditious trial of this case so as to be concluded within four months of the receipt of this order".
6. ' Learned counsel has contended that the condition attached to the order of bail is without lawful authority. He has relied on Mian Mahrnud Qasuri and others v. The State (1), Abdul Ahad v. The State (2); Mil. Nasim Akhtar v. The State (3) and Maulana Fateh Muhammad v. The State (4). He {{FOOT NOTE}}
(1) PLD 1963 SC 478 (2) 1970 P Cr. L J 1256
(4) P L 1.3 1973 Lab. 874
(3) 1983 P Cr. L J 1990 {{FOOT NOTE}} ' has also contended that, if at all, the petitioner could be directed to make deposit of sum of money in lieu of executing a bond as according to him, it is permitted by section 513 of the Code of Criminal Procedure.
7. ' The point raised by the learned counsel is undoubtedly legal and it cannot be said that insofar as that aspect is concerned his contention would not merit serious consideration so as to examine, amongst others, the question; whether the imposition of such a condition would not amount to and should not be treated as refusal to grant bail with necessary consequences, and also, whether the attachment of a condition with some further modification might become lawful in the context of the accepted legal position that on principle when a Court grants bail, the accused on furnishing and acceptance of bail/surety bonds, comes out of one form of detention and goes under another form of similar restraint; which as subject to the supervision and the control of the Court through the instrumentality of the sureties.
8. It is however not necessary to decide these points in this case because after hearing the learned counsel at some length, we do not consider it otherwise fit for grant of leave to appeal; the refusal or grant whereof is in exercise of discretionary jurisdiction of this Court. In particular we have found it not a fit case because of the conduct of the petitioner in her insistance that none of her relations within prohibited degree, should act as her sureties. It leads to a reasonable supposition that she might reside with Haq Nawaz while the question of alleged marriage with whom, is still sub judlce.
9. An secondly when questioned as to why, if the plea of the accused regarding marriage is genuine and bona fide, so far no suit for jactitation of marriage as indicated by this Court in Muhammad Azam v. Muhammad Iqbal and others (1), has been filed, learned counsel's reply was that it could not be filed when the petitioner is in jail. This explanation obviously is without substance because Haq Nawaz who was released on bail by order dated 13-3-1984 could have filed such a suit.
10. Moreover the suit should also have been filed by the petitioner even if she was in jail. Arrangements could have been made in this behalf on a request to be made to the jail authorities. The other possible explanation that the accused have not yet been properly advised in this behalf, need not be examined, as, there is no material before us on this question.
11. ' In the light of the foregoing discussion and in the circumstances of this case we do not consider it fit to grant leave to appeal. This petition accordingly is dismissed.
(1) PLD 1984 SC 95 {{FOOT NOTE}}