' The petition under section 439, Cr.P.C. Read with section 561-A, Cr.P.C. Seeks modification of the order, dated 20-6-1992 of the learned Sessions Judge, D.I. Khan whereby, the petitioner Mst. Chan Bibi was admitted to bail in a case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the condition that she be handed over to the sureties related to her with the prohibited degree.
2. The facts leading to this petition in brief are that on the report lodged by her husband a case under section 5/11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the petitioner and her alleged paramour Manzoor and his relatives at Police Station Paharpur vide F.I.R. No,155, dated 24-5-1992. After her arrest the petitioner moved the Illaqa Magistrate for bail but in vain. However, she was granted bail by the learned Sessions Judge, D.I.
Khan on 20-6-1992 on the condition that the sureties should be related to her within the prohibited degree. On the strength of that order her maternal-uncles unilaterally furnished the requisite bail bonds on 24-6-1992 which were duly accepted but she declined to be released on the bail bonds furnished by them and moved an application before the learned Sessions Judge, D.I. Khan on 5-7- 1992 through her special attorney Malik Qayyum Nawaz to the effect that on acceptance of the bail bonds furnished by her special attorney she may be released on bail as her relatives had hatched a conspiracy to murder her after getting her released on bail and in order to translate their sinister design into practice her maternal-uncle had already made an attempt to get her released on bail but she had foiled their attempt by refusing to accompany them. Pursuant to that application the order was announced by the learned Sessions Judge D.I. Khan on 26-7-1992 and her statement was also recorded but her application was dismissed on the ground that she could not be handed over to the sureties who were not related to her within the prohibited degree.
3. It was contended by the learned counsel for the petitioner that the condition imposed by the learned Sessions Judge, D.I. Khan not only offended against the provisions of section 497, Cr.P.C.
And the human rights but also amounted to virtual denial of the bail. Reliance was placed on Mst.
Manzoor Bibi alias Manzooran v. The State 1988 P Cr. L J 564 wherein the request made by the learned counsel for the complainant that the petitioner be released on bail bonds furnished by her father was turned down on the ground that such a condition was not proper as her father was siding with the complainant of the case and she may not wish to be released on the surety bonds furnished by him and it was held that an accused person has a right to furnish surety of his own choice and under the law he cannot be compelled to produce a particular person as his surety.
4. The learned Assistant Advocate-General assisted by the learned counsel for the complainant on the other hand submitted that under sections 497 and 498, Cr.P.C. The Courts had vast discretionary powers to pass conditional bail orders in proper case and the condition imposed in the present case was appropriate as the petitioner was facing prosecution in a case involving moral turpitude. Reliance was placed on Muhammad Ayub v. Mst. Nasim Akhtar and another 1984 P Cr. L J 160 SC (AJ&K) wherein the requirtment of the surety being a Mehram was held to be most reasonable in view of the fact that the accused was a young married woman.
5. There is no in-built provision in the Code of Criminal Procedure empowering the Courts to attach conditions to bail but in the absence of a specific bar in this context the Courts have ample discretionary powers under sections 497 and 498, Cr.P.C. To pass conditional bail orders with a view to guard against repetition of the offence of immorality but the interest of justice demands that the conditions imposed should be reasonable and not arbitrary. In instant case there was no justification at all to dovetail the bail order with the condition complained of because the petitioner besides denying the accusation levelled against her in the F.I.R. Had described the F.I.R. As a counterblast for the reason that it was lodged on the very day when she had filed a suit against the complainant in the Court of the learned Senior Civil Judge, D.I. Khan for dissolution of her marriage and in any case the condition ought to have been relaxed when it had transpired that had become workable on account of strained relations between the petitioner and her relatives. The relatives of the petitioner have joined her husband with whom she is locked in civil litigation and she also apprehends danger to her life at their hands and the apprehension seems well-founded in view of her refusal to be released on the bail bonds furnished by her maternal-uncles. The condition in question has indeed become a nightmare for the petition because if it is not fulfilled she will languish in jail and if it is satisfied she may lose her life. A case for its removal and modification of the impugned order is thus made out. As regards the authority cited by the learned counsel for the complainant assisting the learned Assistant Advocate-General it will be enough to say that it is distinguishable because in that case the accused had no grievance against her relatives as is evident from the following excerpt:-- "There is no dispute on the 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 relatives 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."
6. For the foregoing reasons this petition is accepted, the condition that the petitioner be handed over to the sureties related to her within the prohibited degree is removed and the impugned order is modified accordingly and it is directed that the petitioner shall be released on bail on furnishing the bail bonds in the sum of Rs,30,000 with two sureties each in the like amount to the satisfaction of Ilaqa Magistrate.