' The petition is addressed against the order of the District Criminal Court, Kotli, passed on October 31, 1989, whereby upholding the order of the Tehsil Criminal Court, Kotli, recorded on October 21, 1989, the prayer for release of the accused-petitioner on bail, was turned down.
2. The accused-petitioner has been apprehended on the charge of offence of Zina under sections 10 and 18, Offence of Zina (Enforcement of Hudood) Ordinance. A report was made at the Police Station Fatehpur Thakyal, on October 19, 1989 containing the allegation that Muhammad Iqbal and Mst. Naseer Begum, accused were found naked sharing common bed at night. They were ascribed offence of Zina and attempt to Zina as contemplated under sections 10 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance.
' Muhammad Ashraf, complainant made a report that he saw Pick-up No, CH.2118 of the accused at Palyarni Colony, Nakial. Fazal K'arim and Muhammad Gulzar were standing-near the pick-up. The complainant apprehended that the accused, owner of the pick-up, must have had gone to Mst.
Naseer Begum with the intention of committing Zina. He was accompanied by Mahboob Alam, to the house of father of Mst. Naseer Begum who happened to be father-in-law of Muhammad Ashraf. On his inquiry, the complainant was informed that Mst. Naseer Begum was inside the room.
He wanted to enter the room but Mst. Naseer Begum did not open it. He forced upon the door and Mst. Naseer Begum and Muhammad Iqbal were found sleeping on a common bed in naked position. On finding the aforesaid position of the accused, he sent Mahboob Alam to call the other neighbours. The people of the vicinity also arrived on the scene. It was alleged that the accused persons were carrying illicit relations resulting in commission of Zina with the connivance of father of Mst. Naseer Begum who was sleeping outside the room, the place of alleged offence.
3. The plea for bail placed before the trial Court was rejected. The District Criminal Court also declined to interfere in the order of the trial Court.
4. Mr. Aleemuddin, the learned counsel for the petitioner argued that the accused was involved in the case out of enmity as he was engaged to the younger sister of Mst. Naseer Begum. The engagement was made against the consent of the complainant and other witnesses of the case, which antagonised and provoked him to hatch the false case against the accused. It was further argued that there was no evidence of commission of Zina. Therefore, at the best, it was an offence under section 18 of the Zina Ordinance, punishable with imprisonment of 10 years. He cited 1986 P Cr. L J 2878, 1987 P Cr. L J 1021 and 1988 P Cr. L J 2168, in support of his contentions. The plea of bail was opposed by the learned Additional Advocate-General.
5. The accused-petitioner is ascribed the offence of Zina and attempt to Zina. In absence of requisite evidence of four eye-witnesses, the ordinary sentence of Hadd is not enforceable in the case. In the circumstances, it is a case of sentence of Tazeer. It is agreed that the sentence liable to be enforced, is 10 years. The offence is cognizable. Therefore, the accused cannot claim bail as a matter of right.
6. During the arguments, the learned counsel for the defence placed on record a copy of F.I.R.
No,46/89 of August 31, 1989. In that report, the amused was ascribed the allegation of abduction and elopment of Mst. Naseer Begum, with the intention of committing Zina. That report was made by her husband. The present occurrence took place about 2 months thereafter. This position indicates the state of relationship of the accused persons and their attitude of prima fade showing their involvement in repeating the alleged offence of Zina. This is, therefore, a case of distinguishable nature from the ordinary cases.
7. Mst. Naseer Begum filed a suit for divorce against her husband. One of the grounds for divorce rested on the allegation of Tian'. It was averred that her husband made false accusation of her bad conduct. In the circumstances, her separation was unavoidable. The argument addressed at the bar that on account of bringing a suit for divorce, the complainant party developed enmity against the accused, does not lend force to the contention. For the second report was not made by the husband but by Muhammad Ashraf who happened to be brother-in-law of Mst. Naseer Begum accused. The other eye-witness was equally not shown to have any malice for false accusation ascribed to accused persons. It is also on record that the accused were caught red-handed in naked position sharing common bed where various people of the vicinity assembled on the call of the complainant.
8. The medical evidence renders no assistance. It favours nobody's case. Mst. Naseer Begum is mother of 6 children. Therefore, without going into further discussion on the point, it is considered safe to leave this evidence at this stage as it is; and we dispose of the petition primarily on tentative appraisement of oral evidence of eye-witnesses.
9. The argument of enmity ascribed to Muhammad Ashraf is not borne out of the record. There is no counter-evidence in the manner of affidavit etc. Therefore, mere suggestion of enmity of the accused-petitioner with the complainant cannot be given any weight.
10. The matter of bail is decided in exercise of discretion. The discretion exercised by the subordinate Courts, unless found to have been exercised in an arbitrary manner, cannot be interfered with lightly. It is not shown that the discretion exercised by the subordinate Courts was exercised in an arbitrary manner. In the circumstances, no justification is available to interfer in the same.
' There is no force in the petition. It is therefore, dismissed. However, the accused may renew his prayer for bail under the changed circumstances favourable to him.