1. ' BASHARAT AHMAD SHAIKH, J.--Respondent Mst. Chulandra Begum is involved in a case under sections 10/16 and 19 of Offence of Zina (Enforcement of Hudood) Ordinance registered at the instance of the petitioner, before this Court, Muhammad Bostan. On being arrested by the Police, she applied for bail but the Additional Tehsil Criminal Court rejected the joint application moved by her as well as the co-accused Muhammad Ayub on 30-1-1989 on the ground that a prima facie case existed against them. The accused persons took an appeal to the District Criminal Court which accepted the application by its order passed on 20-2-1989. The Court, however, ordered that Mst. Chulandra Begum shall be released on the surety of a `mehram'. Chulandra Begum filed an appeal before the Azad Jammu and Kashmir Shariat Court with the prayer that the condition that she shall be released on the surety of a `mehram' may be vacated. In her appeal she stated that her father was dead while her other relatives have turned hostile to her and all persons related to her within the prohibited degree were siding with the complainant in the case and there is no `mehram' who may give protection to her life and honour if she comes out of the Jail.
2. ' The appeal was heard by a Single Bench of the Shariat Court on 9-3-1989 and was decided on the same day. The Shariat Court removed the aforementioned condition. The Shariat Court took the view that the condition that surety should be a person related to her within the prohibited degree is not justified and called for in the facts and circumstances of the case. Complainant Muhammad Bostan has brought a revision in this Court. The order of the Shariat Court proceeds on four grounds:--
(i) the co-accused in the case was enjoying freedom on bail while Mst. Chulandra Begum was confined in Judicial Lock-up for more than two months because of the condition imposed on her, therefore, the principle of equality of treatment demanded that the condition may be removed;
(ii) the learned Judge observed that he had not been able to lay hand on any such precedent in Islamic history where such 4 condition was imposed while releasing a woman on bail;
(iii) although, as has been held by the Azad Jammu and Kashmir Supreme Court, imposition of a condition is not unlawful but the learned Judge expressed the view that power of imposing condition should be pressed into service only in very exceptional cases where the interest of justice so demands; and
(iv) main objective of securing bail and surety bonds is to ensure the attendance of the accused, therefore, ordinarily no condition should be imposed while granting bail.
3. ' It has been argued before us that the Shariat Court has avoided the law laid down by this Court in the case titled Muhammad Ayub v. Mst. Nasim Akhtar 1984 P Cr. L J 160. It was stated in the revision petition and also during the arguments before us that one Bashir Ahmad, who is a cousin of the co-accused Muhammad Ayub, stood surety for respondent Mst. Chulandra Begum and the co- accused thus has easy and unfettered access to the respondent at the house of the surety. This leads to the repetition of the offence with which the accused persons are already charged. Mr. Abdul Rashid Abbasi, Advocate, who appeared for the petitioner, contended that in presence of the aforementioned judgment of this Court the Shariat Court had little choice left in the matter and the only legal order which the Shariat Court was competent to pass under law was one of rejection of the appeal filed before it. He vehemently contended that the opinions expressed by the learned Judge in the Shariat Court run counter to the dictum of this Court. Sardar Muhammad Yasin Khan, counsel for Mst. Chulandra Begum, on the other hand, submitted that the case has its own peculiar features in so far as there is no person within the prohibited degree who enjoys the confidence of the female accused. Therefore, the Shariat Court was right in passing the order impugned by the complainant. The learned Advocate-General Mr. Manzoor Hussain Gillani supported the revision petition.
4. We have no hesitation in holding that the order of the Shariat Court in every part is unsustainable.
5. We have already noted above the four reasons which prevailed with the learned Judge in the Shariat Court in passing the impugned order and we find that none of the grounds were available to the learned Judge and we proceed to examine them seriatim.
6. ' The first reason which. Found favour with the learned Judge in the Shariat Court was that the order passed by him was aimed at upholding the principle of equality of treatment. A perusal of the judgment in Nasim Akhtar's case shows that facts in that case were the same as in the present case. The precedent case was also under sections 10/16 and 19 of the Enforcement of Hudood (Offence of Zina) Ordinance and there were, quite naturally, a male accused and a female accused and the male accused Abdul Khaliq had already been enlarged on bail when this Court ordered that the female accused may be released only if a person within the prohibited degree stands as surety. In face of these facts, it was not open for the Shariat Court to record this observation which is inconsistent with the judgment of this Court. Even otherwise it is well settled that the right of equality as enshrined in Fundamental Right No, 15 allows reasonable classification and all female accused charged with similar offences form a distinct class by themselves and to all of them the law laid down by this Court shall apply equally. In any case such an argument could only be raised before this Court which is always open to conviction on a particular proposition of law if a case is made out. Such an argument could neither be raised before the Shariat Court nor could be made basis of decision by that Court.
7. ' The other reason recorded by the learned Judge is that he was not able to lay his hand on any such precedent in Islamic history. We have already noted that the order of the Shariat Court was passed immediately after hearing of arguments and it appears that the learned Judge did not have the time to go through the judgment in Nasim Akhtar's case which specifically deals with this aspect. It will be useful to reproduce the following two passages from para. 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.
8. 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."
9. "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."
10. ' A perusal of the above parts of the judgment shows that while dealing with this question the moral values of an Islamic society and injunctions of Islam were kept in view. Main purpose before this Court was to eliminate the possibility of repetition of alleged offence. These conditions flow from Holy Qur'an and Sunnah and are not open to disagreement.
11. ' It may be added that .The bail matters are governed by sections 497 and 498 of the Criminal Procedure Code. Section 32(2) of the Islami Tezeerati Qawaneen Nafaz Act lays down that matters which are not specifically dealt with by the Tazeerati Act, the Criminal Procedure Code and the Penal Code would apply. It is because of this provision that bail matters are decided in light of the codified law on the subject, namely, sections 497 and 498 of the Criminal Procedure Code. A reading of paragraph 7 of Nasim Akhtar's case shows that the stipulation regarding `mehram' is based on the interpretation of sections 497 and 498 mentioned above.
12. ' The third reason which weighed with the learned Judge in the Shariat Court was that the power of the Court of passing conditional order regarding the `mehram' standing as surety is to be pressed into service in exceptionable cases. A plain reading of the judgment in Nasim Akhtar's case shows that the principle laid down by this Court is the rule and there was hardly any room for an impression to the contrary. It is clear that it was intended to lay down as a rule that this stipulation is necessary to eliminate possibility of repetition of offence.
13. ' It may, however, be clarified that it is not an inflexible rule that for every female accused the person who stands surety must be a `mehram'. A reading of para. 18 of the judgment in Nasim Akhtar's case would plainly show that it was in the circumstances of the case that this conditional order was passed. The Courts cannot sit with folded hands and watch a female accused languishing in lock-up when it is either impossible to act upon this rule or when the conscience of the Court is satisfied that cogent reasons exist which necessitate departure from this rule. The Shariat Court was, however, not justified in forming the view that this direction may be given in very exceptional circumstances. We hold that the correct position is to the contrary. Standing of `mehram' as surety is a rule which may be departed from in exceptional cases where a proper case is made out, but in no case the female can be released on the surety of a person who may facilitate the repetition of the alleged offence as is the present case.
14. ' The last reason forming basis of the Shariat Court order is in the following words:-- "The main objective behind a person to furnish bail and surety bonds is to ensure his attendance in the Court when the case against him is called for hearing."
15. ' This point was raised by way of an argument but was specifically repelled by this Court in the following words:- "We are unable to agree with the argument 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? (para. 15).
16. And then this Court proceeded to hold in para. 17 that the term bail connotes transferring the accused from the judicial or police custody to the surety.
17. We may also observe that apart from the four reasons discussed above the Shariat Court has said nothing as to why it was considered in the interest of justice to set aside the conditional order passed by the District Criminal Court. The learned Judge in the Shariat Court has not said that it is not possible that a `mehram' may stand as surety for Mst. Chulandra Begum nor indeed any other reason has been recorded.
18. The upshot of the foregoing is that order of the Shariat Court is set aside and the order of the District Criminal Court is restored. Consequently bonds executed by Mst. Chulandra Begum and Bashir Ahmad stand cancelled. Respondent Mst. Chulandra Begum will be sent to Judicial Lock-up until a person within prohibited degree stands surety for her or exceptional circumstances based on cogent reasons are shown to exist so that the rule may be departed from.
19. Revision .