1. ' SARDAR SAID MUHAMMAD KHAN, J.--- This appeal has been directed against the order of the Shariat Court, dated 16-11-1989, whereby the revision petition filed by the appellant, herein, was dismissed and he was refused bail. \ ' The brief facts giving rise to the present appeal are that a case was registered against the appellant, herein, and some others, under section 10/18 of the Offence of Zina (Enforcement of Hudood) Ordinance (hereinafter shall be referred to as Ordinance) at Police Station Fatehpur Thakyal. The allegation against the appellant is that he had developed illicit relations with Mst.
2. Naseer Begum, who was a married woman and had six children. Some time prior to the incident in question she had left the house of her husband and was putting up with her father. During the night falling between 18/19-10-1989, Muhammad Ashraf, complainant, who is closely related to Mst.
3. Naseer Begum saw Pick-up No,CH-2118 parked near the house of the father of Mst. Naseer Begum and apprehended some foul play; two persons, Fazal Karim and Muhammad Gulzar, were standing near the said Pick-up. Consequently, Muhammad Ashraf, complainant, alongwith one Mahboob Alam went to the house of the father of Mst. Naseer Begum, who is related to the complainant as uncle and father-in-law. He inquired from his uncle, the father of Mst. Naseer Begum, about the whereabouts of Mst. Naseer Begum and was told that she was sleeping alone in the room. The complainant went to the said room and asked Mst. Naseer Begum to open the door, but when she did not oblige him, he forcibly opened the door and on entering the room saw the appellant and Mst. Naseer Begum in naked state and sharing a common bed. He lodged F.I.R. At the police station and a case was registered against the appellant, and two others who were standing near the Pick- up. The appellant sought bail first from the Tchsil Criminal Court, Kotli, and then from the District Criminal Court, but he was refused bail. Consequently, he filed a revision petition in the Shariat Court against the order of the District Criminal Court but the same was also dismissed.
4. ' We have heard the arguments advanced at the Bar. Mr. Shard Tariq, the learned counsel for the appellant, has vehemently argued that a false case has been fabricated against the appellant because the complainant was inimical to him due to the fact that the younger sister of Mst. Naseer Begum was betrothed to Muhammad Iqbal, appellant, and the complainant was against the marriage of the younger sister of Mst. Naseer Begum with the appellant. He has argued that the prosecution story is unnatural because it is improbable that the father of Mst. Naseer Begum was sleeping in Verandah of the house and the appellant was committing adultery with his connivance and in his presence. He has further contended that the medical report negatived the stand of the prosecution that in fact any adultery was committed by the appellant with Mst. Naseer Begum. His contention is that medical report shows that no sexual intercourse was committed with Mst. Naseer Begum, three days prior to the date when medical opinion was given by the Medical Officer. The learned counsel has further submitted that in any case maximum punishment prescribed under section 10 of the Ordinance is ten years and in case of attempt to commit the said offence, it is further reduced to a period of five years. Thus, the quantum of punishment, according to the learned counsel, constitute a valid reason for releasing the accused/appellant on bail. The learned counsel for the appellant has cited some authorities in support of his contention that in identical cases the accused persons were allowed bail.
5. ' In a case Tariq Mahmood v. The State 1985 P Cr. L J 1335, the bail was allowed in a case of rape on the ground that the girl was of easy virtue and there were circumstances which tended to show that implication of the accused persons was not free from doubt. It was observed in the case that although the Zina was most detectible offence in Muslim Society yet there were no hard and fast rules that hail should be refused in all cases.
6. ' In Sarkar v. Muhammad Yunus 1981 P Cr. L J 971, the appeal filed by the State against the acquittal of the accused was dismissed in limine on the ground that there was no evidence on the record that the accused had either enticed away the woman with the intent to have illicit intercourse or committed adultery with her.
7. ' In Muhammad Nawaz v. The State PLD 1983 FSC 522, the accused was acquitted of an offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that although the accused and the woman were living in the same house together, yet there was no evidence that they were living as husband and wife. Therefore, it was opined that conviction and sentence cannot be sustained merely on suspicion.
8. ' In Riaz v. The State 1986 P Cr. L J 2878, the bail under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance was allowed to an accused of 17 years old who was charged for attempting to commit Zina with a woman of 45 years. It was opined that as the offence was bailable, the accused was being released on bail. No reference was made to any provision of law under which the offence falling under section 18 of the said Ordinance was bailable.
9. ' In Liaqat Ali v. The State 1988 P Cr. L J 1789, the hail was allowed in offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that there was no explanation for lodging first information report after delay and the allegation that Zina was committed after breakig string of the Shalwar was not reliable because no such broken string and Shalwar were produced. There were no eye-witnesses of the occurrence.
10. ' In Mst. Nur Bakhat v. The State 1988 P Cr. L J 1968, the lady accused was granted bail in case under the provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that she had a suckling baby of one year.
11. ' In Tabarak Ullah v. The State 1988 P Cr. L J 2168, hail was granted in a case falling under the provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that originally no first information report was received against the accused but only a co-accused allegedly disclosed about the incident. The statement of the co-accused was held to be unreliable as being a statement of an accomplice.
12. ' In All Muhammad v. The State 1987 P Cr. L J 1021, the accused was released on bail under the offence falling under sections 10(2), 13, 14 and 18 of the Offence of Zina (Enforcement of Hudood)
13. Ordinance, on the ground that the wife had left the house of the husband four months prior to the registration of the case and started living with her father, who was running a brothel in his house. It was opined that there existed circumstances that the case was result of enmity between the parties.
14. ' Controverting the arguments advanced by the counsel for the appellant Mr. Manzoor Hussain Gillani, the learned Advocate-General, has submitted that the authorities cited by the learned counsel for the appellant have no bearing on the facts of the case in hand. He has argued that in bail matters each case is to be decided in view of its peculiar circumstances. He has submitted that the offence falling under section 10/18 of the Ordinance or an attempt to commit the said offence is not bailable and as such the appellant is not entitled to bail as of right. He has further contended that the medical report does not negative the case because the Lady Doctor, who had examined Mst. Naseer Begum, gave the medical opinion about 10/12 days after the examination of Mst. Naseer Begum and it is recorded in the said report that no sexual intercourse was committed with Mst. Naseer Begum at least within three days, before preparing the medical report. The learned Advocate-General maintained that it is not the prosecution case that there was any sexual intercourse with Mst. Naseer Begum after the registration of the case. He has further contended that the opinion of the Chemical Examiner shows that scrapings from the bed-sheet, on which the accused persons were found in compromising position, were found to be stained with semen. This, according to the learned Advocate-General, supports the prosecution case. He has submitted that probably the report of the Chemical Examiner was not on the file when the Shariat Court dismissed the revision petition and it was for this reason that the order passed by the Shariat Court makes no reference to the report of the Chemical Examiner. The learned Advocate-General has argued that the appellant and Mst. Naseer Begum were found naked in the room where there was only one bed.
15. Thus, there is strong presumption that he was committing adultery. The complainant is very close relative of Mst. Naseer Begum and it cannot be believed that he stigmatised the honour of his uncle and father-in-law along with the honour of Mst. Naseer Begum. A report which tends to bring a bad name to the family of the complainant cannot be regarded as false on the preposterous suggestion that the case might have been concocted merely because the appellant was given the hand of the younger sister of Mst. Naseer Begum against the wishes of the complainant. He has further contended that in an offence of Zina in a Muslim society, particularly when we are taking steps for promulgating the Shariat Laws in the State, is a very detestible offence and strict view should be taken in the matter. A lenient view, the learned Advocate-General maintained, is tantamount to encourage the repetition of the offence of Zina. He has also argued that a case under the provisions of Offence of Zina (Enforcement of Hudood) Ordinance had already been registered against the appellant when the occurrence in question took place. Thus, the gravity of the offence has been aggravated.
16. ' We have given our due consideration to the arguments advanced at the Bar. The authorities cited by the learned counsel for the appellant are not applicable to the facts of the case in hand. Each criminal case has its own peculiar circumstances and the dictum given in one case does not necessarily constitute an authority for another. In the instant case the appellant and Mst. Naseer Begum both were found naked who were sharing the same room when they were caught red- handed. Apart from the complainant they were seen in the room by Mahboob Alam. The scrapings of the bed-sheet sent to the Chemical Examiner were found stained with semen. The complainant and Mst. Naseer Begum are closely related. Therefore, we are not impressed by the argument that the complainant stigmatised his family honour by concocting a false case against the appellant.
17. As has already beer. Pointed out, the complainant is not only nephew of the father of Mst. Naseer Begum but he is also married to the sister of Mst. Naseer Begum. Therefore, taking into consideration the overall circumstances of the case we are of the view that the discretion exercised by the Shariat Court cannot be regarded as violative of any settled principle of law on the subject.
18. Thus, finding no force in this appeal it is hereby dismissed. It may be B observed that this order will not debar the appellant from approaching the trial Court, if so advised, at a later stage for his hail.