SHER ZAMAN CHAUDHRY, J.-This appeal directed against the judgment recorded by the Shariat Court on 11th May, 1983 arises out of the following circumstances :-
(i) that Muhammad Ayub appellant, the husband of the respondent, had gone to United Kingdom to earn his livelihood. While the respondent b"ck here at home is alleged to have developed illicit relations with Abdul K halid, a co-villager who abducted her on 2nd May, 1982. After having been informed about the abduction of his wife the appellant came back. On F. I. R. Lodged by him a case under sections 10, 11 and 16 of the Enforcement of Hudood (Offence of Zina) Ordinance was registered by the police Dudyal against the respondent and co-accused Abdul Khaliq. After completion of investigation they were forwarded to stand trial in the District Criminal Court, Mirpur :
(ii) that during the pendency of the trial both the accused applied for bail. The learned District Criminal Court while refusing to extend the concession of bail to Abdul Khaliq, on 7th August, 1982, allowed the petition of respondent and ordered her release on surety of a Mehram% Not satisfied with this order passed by the District Criminal Court on 7th August, 1982, Abdul Khaliq approached the Shariat Court for grant of bail while the appellant applied for the cancellation of bail allowed to the respondent by the District Criminal Court. Co-accused was allowed the bail. The application moved by Muhammad Ayub appellant for the cancellation of bail extended to the respondent was rejected by the Shariat Court vide order dated 27th September, 1982.
2. On 5th April, 1983, respondent No, I moved an application before the District Criminal Court stating therein that her mother had permanently shifted to Sahiwal (Pakistan) and none of her other relatives were prepared to stand surety for her. Besides, the imposition of any condition while passing a bail order was not permissible under law. So, therefore, she prayed for the removal of condition attached to the bail order dated 7th August, 1982 and that she be allowed to be released on surety of some impartial person. The trial Court however, declined to allow petition on the ground that it had no power to review its order, dated 7th August, 1982. The plea taken by the respondent about her mother having gone permanently to Sahiwal was also found to be untrue.
The application was therefore, rejected by the District Criminal Court vide its order, dated 17th April, 1983.
3. The respondent through an application before the Shariat Court, sought the reversal of the trial Court's order dated 17th April, 1983. The grounds on the basis of which the propriety of the order, passed by the trial Court was challenged were almost same as were listed in the petition, dated 5th April, 1983, moved in the trial Court. The learned Judge in the Shariat Court vide his order, dated 11th May, 1983 while accepting the revision petition reversed the order, dated 17th April, 1983, and modified the bail order, dated 7th August, 1982 passed by the District Court. The requirement of surety being a Mehram was therefore, declared illegal and inoperative. As a consequence of this order passed by the Shariat Court the respondent was released on the surety of her own choice.
4. It is this order of the Shariat Court, dated 11th May. 1983 against which the appellant now has come in appeal. The grounds listed in the memorandum of appeal on the basis of which is sought the reversal of impugned order are as :--
(a) that since it was only the order, dated 17th April, 1983 passed by the trial Court the correctness of which was challenged the learned Shariat Court had therefore, no jurisdiction to interefore with the order, dated 7th August, 1982 which had become final. Besides, the petition by the respondent having been filed beyond the period of limitation provided under the provisions of Islamic Penal Laws Act, was time-barred and liable to be dismissed. The impugned order passed by the Shariat Court whereby the order of the trial Court passed on 7th August, 1982 was modified, was contrary to law and not maintainable ;
(b) that the impugned order amounts to facilitating the perpetuation of immorality. It was thus, being contrary to the public policy and the injunctions of Islam, liable to be set aside. The order under appeal was even otherwise not in accordance with law ;
(e) that the appellant deliberately made misrepresentation of facts before the trial Chart. This aspect of the case was not even considered by the Shariat Court while granting a discretionary relief. The order under appeal was liable to be set aside.
5. Mr. B. A. Sheikh, the learned counsel for the appellant submitted that sections 497, 498 of the Code of Criminal Procedure confer vast discretionary powers on the High Court as well as on the District Criminal Court to make even a conditional bail order in a proper case, if, in their estimation the interest of justice so demand. Besides the order passed by the District Criminal Court on 7th August, 1982, could not really be termed as bail with a condition attached. It is merely the exercise of the discretion with regard to the suitability of a surety. The order under appeal is based on no reasons nor any provision of law alleged to have been violated, has been referred to by the learned Shariat Court. The impugned order, argued the learned counsel, was therefore, bad in law and liable to be set aside.
6. Defending the impugned order Mr. Muhammad Younus Surakhvi, Advocate argued that while granting a bail no condition could be attached except those as provided under sections 499, Cr. P.
C. The condition imposed by the learned District Criminal Court that the respondent be released on the surety of Mehram, besides, being violative to the terms of section 498, Cr. P. C., amounted to virtual denial of the bail. The impugned order was, according to him, therefore, perfectly in accordance with law and open to no exception. Reliance was placed on 'Mian Mahmud Ali Qasuri and others v. The State, Lakhi Narayan Kundu v. The Crown' , `Gulzar Hussain Shah v. Ghulam Murtaza and others' and Muhammad Afzal Khan v. The State .1 2 3 4
7. In view of the stand taken by the learned counsel for the respective parties the point now requiring determination, therefore, is as to whether in a non-bailable case a conditional bail order could at all be passed and if yes, whether it would be a bail order with a condition precedent or that the condition could also be incorporated in the bail bond as well? Mr. Muhammad Younus Surakhvi's submission was that no conditional bail order regardless.Of the fact that the condition was ordered to be incorporated in the bail bond or not, could legally be passed. We will now, therefore, examine the case referred to by the learned counsel. In case of 'Mian Mahmud Ali Qasuri and 4 others v. The State' the appellants were being tried for an offence under section 124 (a) of the Penal Code. While allowing the petition for bail the condition was ordered to be incorporated in the bail bond to the effect that the appellant petitioners would undertake not to deliver any speech of the kind which was the basis of charge for which they were being prosecuted. The order was challenged on the ground that incorporation of such a condition was not permissible under the terms of section 499, Cr. P. C. So the incorporation of it in the bail bond was, therefore, illegal, Mr. S. A. Rehman, J. Observed :- "Whether a bail order can be subjected to a condition of this kind at all, without its incorporation in a bail bond, is a larger question which does not call for consideration in the circumstances of the instant case. We are here concerned with limited question whether such a condition can be incorporated in a bond required to be executed by the sureties when a person is granted bail.
There is nothing in the provisions of sections 496, 497 and 498 of the Code, which can end support to the contention of the learned Advocate-General that a condition of this kind can form an integral part of a surety bond or bail bond."
Again in the concluding part of this judgment the learned Judgeobserved "Whatever the position may be with regard to the power of a Court in requiring an undertaking from an accused person before granting bail to desist from the repetition of the offence with which he is charged, as a condition precedent to the grant of bail, it seems fairly clear on the language employed by section 499, Cr. P. C. That such a condition cannot be incorporated in a bail or surety bond itself."
In Lakhi Narayan Kundu v. The Crown' the petitioner after having been arrested was released on bail of Rs, 5,000, later on the amount was reduced to Rs, 2,000 on condition that the petitioner should live within the limits of Rangpur Municipality. This new order was challenged unsuccessfully before the Sessions Judge. Finally the matter came before the High Court for determination. Quite a large number of case law and among those cases of `Gyani Meher Singh v. The State and 'Kamala Pandey v. The King' received particular consideration and were mainly relied upon by the learned Judge. From the careful perusal of the report of these two cases referred to by the learned counsel it becomes clear that neither the facts nor the legal principle laid down in those cases have go any relevancy to the proposition under consideration. The principle laid down in both the cases relied upon by the learned counsel was that no conditional bail order with a direction of the condition being incorporated in the bail bond or surety bond could legally be passed. The petitioners after their release were required to observe the conditions other than those visualised under section 499, Cr. P. C., imposed by the Court. The proposition involved in the present case is qualitatively different. In the present case no direction for the incorporation of any condition either in bail bond or surety bond was made in the bail order. Besides, the respondent if released would not be required to observe any additional condition except those contemplated under section 499, nor would her surety be required to be bound by any such condition so therefore, it is clear that there is a qualitative difference between the cases relied upon by the learned counsel and the present one under consideration. There is a marked difference between passing a conditional order and incorporating the conditioned the bail bond. The clear perception of the distinction between the two is imperative because the results ensuing from each are vastly different. In a bail5 order passed with a condition precedent without having the condition incorporated in the bail bond, if after the release, is found to have been violated by the accused, it may result in cancellation of his bail but in a case where the condition has been incorporated in the bail bond or surety bond and if found to have been violated after the release of the accused, will not only result in cancellation of his or her bail but it would also result in the forfeiture of the bond. The order dated 7th August, 1982, in the present case was obviously not an order which required incorporation of any condition in the bail bond or surety bond. The learned Judges in the Supreme Court in PLD 1963 SC 478 decided not to give any finding on the point whether a bail order could be subjected to a condition with out its incorporation in the bail bond. The question whether a condition could be incorporated in the bail bond or surety bond being purely of academic nature for the purposes of the present case, we, therefore, do not consider it necessary to pursue it any further.
8. No other case has been referred to us on the point that no bail order with a condition precedent could legally be passed in a non-bailable case even though the condition is not required to be incorporated in the bail bond nor have we been able to find any except the judgment of this Court titled 'Muhammad Afzal v. The State'. The petitioner Muhammad Afzal in that case was being prosecuted before the Tehsil Criminal Court, Mirpur for an offence under section 14/15 of the Act Islami, read with section 307, A. P. C. He was released on bail by the District Criminal Court, Mirpur on bail bond of Rs, 20,000 with two sureties in the like amount. Subsequent to his release, on an application moved by the Public Prosecutor, the District Criminal Court passed an order directing the accused-petitioner to surrender his passport. The High Court on revision held that the District Criminal Court could pass such an order. The propriety of the order passed by the High Court and the District Court was challenged in the Supreme Court. The orders appealed against, having been found contrary to the provisions of section 499, Cr. P. C. Were set aside and direction to the effect that the passport be returned to the accused-petitioner was issued.
9. We have carefully examined the report and the principles encunciated in this case. With utmost respect we find ourselves in disagreement with the principle laid down in this case on account of following reasons :-
(a) That the careful persual of the report reveals that the finding was partly based on the consideration that the condition to surrender the passport was unreasonable. Since the order of surrender of passport was set aside by this Court not on account of the condition being unreasonable but that it was illegal. Setting aside the order of surrender of passport if taken to be based on account of its being unreasonable, would in itself presuppose that the conditional bail order could be passed in non-bailable cases. The point can best be illustrated by a reference to an observation at p. 94 of the report which reads :- "It is a matter of common experience that for a person from Mirpur an International Passport is not simply a document authorising travel but it is a most valuable document which entitles its holder to work and earn his livelihood and stay in U. K. Provided his return is within a period of two years and if he fails to revisit U. K. Within a period of two years he loses the rights of re-entry as a returning resident in that country and thus loses the means of livelihood. Taking possession of Passport by a Criminal Court apart from the fact whether it is authorised to do so or not, otherwise creates greater hardships for such persons."
Again para. 5 of the report reads "Moreover, the petitioner admittedly did not obtain the passport after his being released on bail. He was already in possession of this passport that made no attempt to leave the country during the period intervening his release on bail and recovery of the passport. Therefore, it cannot be said that any new event had taken place which suggested likelihood of accused's absconding."
On careful perusal of this observation it is thus clear that the condition imposed by the District Court was considered to be harsh and unreasonable which is quite different to the proposition whether the Court under sections 497, '498, Cr. P. C. Could at all legally pass a conditional bail order. As the passport was not released on the ground of condition being unreasonable but for the reason that under law not such conconditfonal order could be passed so, therefore, this part of the judgment in our view does not have much relevancy to the point in issue ;
(b) that the cases referred to and relied upon are not really supportive to the principle enunciated in 'Muhammad Afzai's case PLD 1978 SC (A J & K) 92 e. g. In Kamala Pandey v. The King' AIR 1949 Cal. 582 while allowing bail condition was imposed that the petitioner would not leave the limits of Midnapur town. Since the petitioner's family lived in a different town so the learned Bench of the Calcutta High Court removed the condition for its being onerous and not because that the Court passing the order had no way could be regarded as supportive to the findings arrived at in Afzal's case.
10. Next is Crown Prosecutor v. N. S. Krishnan . The accused in that case were charged with offence of murder. They were bailed out by the learned Judge of the High Court on furnishing a bail bond of Rs, 10,000 with two sureties in the like amount and with a further conditionthat the accused would immediately leave Madras after their release and would not remain or visit Madras untill the commencement of trial. Subsequently application was moved by the prosecutor for the cancellation of the bail on the ground that sufficient evidence connecting the accused with the crime had been collected. The bail was subsequently cancelled. There is no mention in the report of that case that imposition of condition to the effect that the accused were to leave Madras and not to visit it till the start of trial, was contrary to law. This case too has through inadvertence been wrongly relied upon.
11. We will now advert to PLD 1963 SC 478. This is the case which has particularly been made the basis of the judgment in Afzai's case. For the better appreciation of the point involved reference to the concluding part of the judgment PLD 1978 SC (A J &K) 92 is imperative. It reads "Respectfully agreeing with the learned Judges of the Supreme Court of Pakistan we adopt the same view for reasoning given therein."
After careful examination of the report it is found that the appellants in that case were being prosecuted for an offence under section I24-A of the Pakistan Penal Code. On a bail application moved by the petitioner Mr. Shabir Ahmed, the counsel for some of the petitioners, expressed his agreement to the incorporation of a condition in the bail bond to the effect that the appellants will undertake not to deliver any speech of the kind forming the basis of the charge. After conditional bail was allowed appellant though agreed that they do not intend to deliver any speech yet objected to the incorporation of this condition in their bail bond. While considering the proposition the learned Judges of the Supreme Court of Pakistan only gave their finding on the point as to whether a condition could be incorporated in the bail bond. His Lordship Mr. S. A. Rehman, J. In para. 3 at page 484 of the judgment observed :- "Whether a bail order can be subjected to a condition of this kind at all without its incorporation in a bail bond, is a larger question which does not call for consideration in the circumstance of the instant case. We are here concerned with a limited question whether such a condition can be incorporated in a bond required to be executed by the sureties when a person is granted bail."
The principle laid down in the Supreme Court of Pakistan's judgment seems to have been misappreciated.
12. P. L. D. 1955 Dacca 84, besides, lacking in clarity does not in our view lay good law. While recording the judgment the learned Judge in this Dacca case mainly relied upon Karnak Pandey v.
The King' and 'Gyarti Meher Singh v. Emperor'. The principle laid down in those cases seem to have been streched bit too far. For the point involved as already stated in the earlier part of this judgment in those two cases was that whether a condition could legally be incorporated in the bail bond. The principle laid down was that such a condition could not be incorporated in the bail bond.6 For the aforestated reasons we find that the principles enunciated in PLD 1978 SC (A J & K) 92 are not sound and the law to be restated.
13. The provision of section 498 of the Criminal Procedure Code confers vast discretionary powers on the High Court and the Session Court (District Criminal Court). If the High Court and the District Criminal Court has the powers to pass the bail order in a fit and a proper case then surely it has the competency to pass any conditional bail order if in its estimation circumstances of the case so warrant. Though of course the Courts normally would not and should not pass any conditional order beyond those normal conditions visualised under section 499 of the Criminal Procedure Code but to hold that the Court has no power to pass a conditional bail order in a non-bailable case under any circumstance would be a wrong exposition of law. The provisions of sections 498 admit no such limitation. In Emperor v. H. L. Hutchinson a Division Bench case, it was observed that the High Court's power of granting bail is conferred on it under section 498 and is entirely unfettered by any condition. The Legislature has given the High Court and the Court of Sessions C discretion to act under section 498 unfettered by any limitation other than that which controls all discretionary powers vested in a Judge viz, that the discretion must be exercised judicially. In this case the learned Division Bench while allowing bail ordered as :- "We direct that the applicant Mr. H. L. Hutchinson be admitted to bail to the satisfaction of District Magistrate who will of course see that the bail is adequate but not excessive. Before the applicant be admitted to bail they must give an undertaking in writing to the District Magistrate that they will not take part in any public demonstration or agitation."
In AIR 1958 Tripura 34, the petitioner alleged to be a Pakistani was arrested and charged under section 3 read with section 12 of the Official Secrets Act. While allowing the bail the learned Judge passed the order in the following terms :- "There is no reason as to why the bail should be refused to the petitioner but there appears to be some justification in the request of the learned Government Advocate that in case bail is allowed some safeguard may be imposed to prevent the petitioner from quitely leaving this territory."
So the learned Judge apart from requiring the bail bond of Rs, 5,000 with two sureties in the like amount also ordered the petitioner not to leave the Municipal bounds of Agartala without written permission of the District Magistrate.
14. In re Saradamana and others (1) . It was held that the Court allowing bail in a non-bailable case if feels necessary, has power to impose condition. Bail in that case was allowed with the condition that the accused were to stay at a particular place during the whole period of trial whereas the home town of accused was some 200 miles away. While considering the point the learned Judge in the High Court observed that the conditional bail order could legally be passed while allowing bail in a non-bailable case though in that case the condition imposed was considered to be unreasonable and exceptionally hard so it was modified. For the above stated D reasons we find that the District Criminal Court had the powers to pass a conditional bail order so therefore, the order passed by the District Criminal Court on 7th August, 1982 requiring the surety to be a Mehram was in accordance with law. The impugned judgment passed by the Shariat Court could not, therefore, be sustained.
15. The order dated 7th August, 1982, passed by the District Criminal Court was to the effect that the respondent was to be released on the surety of Mehram. Broadly speaking the order could be termed as a bail order with a condition precedent yet however, it is different from the conditional bail orders generally passed. Conditions whether incorporated in bail bond or otherwise generally operate after the release and if found violated those may entail either in the forfeiture of the bond or cancellation of the bail. In the present case the position is however different. On the surety of any one from among the class of Mehram the respondent was to be released. After the release neither the surety nor the respondent were bound by any condition except those visualised under section7
499. So the order passed by the District Criminal Court was really a choice of proper surety under the circumstances. We are unable to agree with the arguments advanced by the learned counsel for the respondent that the object of asking for the sureties and the furnishing of bonds is only to ensure the presence of the accused before the Court and beyond that no other condition could be attached.
16. In the alternative it was also submitted on behalf of the respondent that even if it be assumed that the Court had the powers and jurisdiction to pass a conditional bail order still the condition imposed in the present case be unreasonable and harsh ought to be removed. After giving careful thought to the point raised we find no force in the submission.
17. The term bail itself visualises some control vesting in the surety who makes himself responsible for the appearance of the accused. F The term bail connotes transferring the accused from the judicial or police custody to the surety. In case of Mahmud Ali Qasurt and others v. The State Mr. Justice S. A. Rehman observed:-- "The connotation of the word 'bail' itself as understood in law, supports this position adopted by the learned counsel on behalf of the appellants. An accused person is said, at common law, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him."
18. As the person released on bail is to go under the control of his surety (in the present case it is young woman), the Court has got to take into consideration the moral aspect of the case as well.
The Courts cannot be oblivious of moral values observed by the society of which they too are a part and parcel. Ours is Islamic society and Islam prohibits the moral laxity and enjoins the elimination of any possibility of it. In the present case the respondent is young married woman. The appellant is her husband. There is no dispute on th point of her being the wife of the appellant.
Besides, her mother, aunts and uncles are available. She may have a cause for grievance against her husband but there appears no reason (at least from the record) for her reluctance to accept any one from among her own relations as surety. In her petition before the District Criminal Court and the Shariat Court no allegation had been levelled against those relatives by the respondent.
Besides, there is allegation of the co-accused having also been found living with the respondent in the same house after her release on surety of her own choice. Since she is already being prosecuted we feel that even the possibility of repetition of the alleged offence be excluded. We feel that the requirement of surety being a Mehram is most reasonable under the circumstances.
19. There is yet another aspect of the case needing consideration. The respondent in her application dated 5th April, 983 before the District Criminal Court 'specifically alleged that her mother had permanently shifted away to Sahiwal (Pakistan) and no other relatives were prepared to stand surety for her. The same averments were repeated in her application before the Shariat Court, the District Criminal Court found that the mother of the respondent had not shifted anywere in Pakistan. The appellant had in his appeal specifically alleged that many of the close relatives of the respondent offered themselves to stand surety but she declined to accept. List of the names of relatives alongwith their affidavits had also been placed on the record. In her concise statement submitted in this Court, the respondent has taken the stand that all her relatives are hostile to her.
Obviously the stand now taken is completely different than the one taken before the lower Courts.
There is no doubt that the respondent deliberately tried to mislead the Courts by her deliberate misrepresentation of the facts. She therefore, disentitled herself to this discretionary relief on this count as well.
20. In case of Muhammad Farooq and others v. The State Mr. Manzoor Qadir, J. While considering a bail petition observed :--8 9 "I must hold that the applicants have not come to the Court with clean hands and in that view of the matter, I do not think they are entitled to have this petition heard. I refuse to consider this petition any further."
21. In case of .Nazir alias Jeer a v. The State. bail petition was dismissed with this short observation :- "After hearing the learned counsel for the petitioner we do not find any justification for interference with the order whereby the petitioner was refused the concession of bail because an attempt was made to mislead a Court of law."
In this view of the matter the respondent, therefore, disentitles herself to any discretionary relief.
22. It was lastly submitted on behalf of the appellant that since section 25 of the Islamic Penal Laws Act, specifically provides for revisions, the revisional powers under the Code of Criminal Procedure were therefore not available to the Shariat Court'. On petition filed by the respondent on 8th May, 1983 the Shariat Court could not legally revise the order, dated 7th August, 1982 passed by the District Criminal Court being clearly beyond 60 days, the period of limitation provided under section 25 of the Islamic Penal Laws Act.
23. Section 25 of the Islamic Act no doubt provides that the Shariat Court will have the revisional powers against the decision of the District Criminal Court and the period of limitation would be 60 days. But then the section neither provides the extent of those powers nor lays down the modality of their exercise. Besides, the argument, in view of the provisions contained in the Azad Jammu & Kashmir Shariat Court Ordinance, does not seem to have any substance. Section 7 of the Ordinance reads :- "(a) For the purposes of the performance of its functions, the Court shall have the powers as are vested in the, High Court while exercising revisional, appellate and original civil and criminal jurisdiction."
' Section 8 reads :- "The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) shall apply, mutatis mutandis, in respect of cases under this Ordinance : Provided that in the said Code the words High Court, Sessions Court and Magistrate First Class wherever occurring, shall be construed to mean the Azad Jammu & Kashmir Shariat Court, District Criminal Court and Tehsil Criminal Court as the case may be, for the purpose of this Ordinance."
24. From the plain reading of these provisions it is thus clear that the Shariat Court had the revisional powers. Under the Code of Criminal Procedure these powers, could however, on petition filed, only be exercised within the period specifically provided under section 25 of the Act. Since the impugned order appears to have been passed on the petition filed by the respondent and not suo motu by the Shariat Court. The petition having been filed beyond 60 days of passing of the order, dated 7th August, 1982, it was clearly time-barred. The impugned order could not, therefore, be sustained even on this count.
For the aforestated reasons we, therefore, set aside the impugned order and restore the order dated 7th-- August, 1982, passed by the District Criminal Court. PLD 1963 SC 478 PLD 1955 Dacca 84 PLD 1970 SC 335 PLD 1978 SC (A 3 & K) 92 AIR 1939 Cal. 714 AIR 1945 Mad, 250 A 1 R 1931 All. 365 AIR 1965 Andh. Pra. 44410 1 2 3 4 5 6 7 8