This is an application for grant of bail to Mst. Shahnaz Bibi petitioner in a case under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at P.S. Shujabad, vide F.I.R.
No. 24 of 1985 dated 2-2-1985.
2. The facts leading to the present bail application are that on 2-5-1985. Khizar Hayat co-accused lodged F.I.R. No. 24 of 1985 at Police Station Shujabad alleging that Khuda Bakhsh and others had abducted his wife Mst. Shahnaz Bibi with intent to commit zinc with her. The investigation revealed that Shahnaz Bibi petitioner was originally married with Hafiz Muhammad Amin. Khizar Hayat co- accused developed illicit relations with her and abducted her. On this Hafiz Muhammad Amin gave 'Talaq' to the petitioner which became effective on 15-1-1985. A panchayat was convened and Khizar Hayat co-accused restored Mst. Shahnaz Bibi petitioner to her parents. She then married Knuda Bakhsh on 23-1-1985. Khizar Hayat again abducted her with intent to commit zina with her and also lodged false case against Khuda Bakhsh and others alleging that they forcibly took away Mst. Shahnaz Bibi in order to force her to illicit intercourse.
3. The petitioner applied for pre-arrest bail which was refused and the petitioner was arrested. The petitioner. Applied for post-arrest bail which was allowed by the learned Additional Sessions Judge Multan on 4-6-1985 with the condition that: "She will be released only if any of her relations within prohibited degree stand surety for her and the surety will give a bond undertaking that in case Mst. Shahnaz Bibi is released on his surety she will not be handed over, in any case, to Khuda Bakhsh or co-accused Khizar Hayat."
The petitioner challenged the aforesaid condition through Cr. R. No. 52 of 1985 which was disposed of by the High Court with the observations : "The learned counsel for the petitioner says that the petitioner is prepared to stay in Darul Aman till the disposal of the criminal case. Before any order is passed by this Court, petitioner may move the Additional Sessions Judge for revising his order dated 4-6-1985. In view of the above statement, this petition is disposed of."
So, the petitioner moved an application before Additional Sessions Judge Multan requesting him to revise his order dated 4-6-1985. On this, the learned Additional Sessions Judge on 20-8-1985 while modifying the order dated 4-6-1985, directed that the petitioner will remain in Darul Aman till the final disposal of the criminal case. Feeling not satisfied with the order dated 20-8-1985 of the learned Additional Sessions Judge, the petitioner once again filed Cr.R.No. 179 of 1985 in the High Court which was disposed of with the following observation: "As per her own request Mst. Shahnaz Bibi will be kept in Darul Aman till the decision of the case.
The Superintendent Darul Aman will refer to maternity ward of D.H.Q. Hospital, Multan at the time of delivery of child. This petition is disposed of."
The petitioner then filed writ petition before this Court which was, however, withdrawn in order to move fresh application for bail before this Court. Instead of filing application before this Court, the petitioner moved Additional Sessions Judge for grant of bail to her which was dismissed on 13-4- 1987, hence this petition.
4. Learned counsel for the petitioner submits that although more than 2 years have passed from the date of the arrest of the petitioner yet the trial has not been concluded; that Mst. Shahnaz Bibi is no more prepared to live in Darul Aman; that she is legally-wedded wife of Khizar Hayat; that she was never married with Khuda Bakhsh and that the Nikahnama, if any, is fictitious. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has seriously opposed this application on the grounds that the condition imposed by the learned additional Sessions Judge in his order dated 14-6-1985 was very much valid; that there is reasonable apprehension that after her release on bail, the petitioner will again indulge in zina with co- accused and that since the bail was allowed to the petitioner on 4-6-1985, therefore, she is not entitled to the concession of bail on account of statutory delay in the conclusion of the trial.
5. I have considered the submissions made by the learned counsel for the parties with care. I find that the order dated 4-6-1985 having been modified on 20-8-1985, the condition that she will be released only if any of her relations within the prohibited degree stands surety for her, does not exist; that the petitioner has continuously remained in Jail and in Darul Aman for more than two years and the trial has not concluded so far; that it is also doubtful as to whether the petitioner who was an accused could have been sent to Darul Aman or could have been allowed to remain in Darul Aman as under trial prisoner till the decision of the criminal case; that the petitioner who under the orders of the Court has been produced in the Court by Superintendent Darul Aman, states that she is no more willing to stay in Darul Aman; that the petitioner states that she had contracted marriage with Khizar Hayat and two children were born out of this wedlock; that her minor children are also confined with her in Darul Aman and that the order dated 4-6-1985 whereby the petitioner was allowed bail by the learned Additional Sessions Judge and which was subsequently modified by the Additional Sessions Judge on 20-8-1985 has virtually become non- existent.
For what has been said above, I am of the view that a case' for grant of bail to the petitioner has been made out. She is, therefore, allowed bail in the sum of Rs.20,000 with one surety in the like' amount to the satisfaction of the Duty Magistrate, Multan.