' Mst. Fajri filed this petition for the grant of bail after arrest in case F.I.R. No,34/96 dated 14-2-1996 under section 16/10, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 of P.S. Basti Maluk, District Multan registered on the complaint of Karim Bakhsh brother of Mst. Fajri petitioner against the petitioner and Muhammad Yasin co-accused. It is mentioned in the F.I.R. That petitioner, a married woman having 6 children eloped with her paramour Muhammad Yasin a young man of 25 years.
2. Learned counsel for the petitioner argued that a case was registered after an unexplained delay of about 4 months that there was no evidence as to the elopement or commission of Zina; that the petitioner legitimately married Muhammad Yasin co-accused after having divorce from her first husband and that the petitioner being a female deserves to be released on bail under section 497(1), Cr. P .0 C.
3. Learned State Counsel argued that the petitioner is named in the F.I.R. With specific role; that she being a married lady could not contract second marriage without obtaining valid divorce from the previous husband. Further argued that the Secretary of the Union Council concerned has reported that the alleged Talaq proceedings were fake and fabricated.
4. I have heard the learned counsel for parties and have gone through the record.
5. I enquired from the police official who has brought the record that whether any offence under section 10, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 has been added. He replied in the negative. The learned counsel for the petitioner has also sought bail for an offence under section 16, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979. Section 16 ibid reads as under:-- "Enticing or taking away or detaining with criminal intent a woman.---Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person or conceals or detains with intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty strips, and shall also be liable to fine.
6. Language of section 16 of the Ordinance no doubt exempts a woman, being subject of enticement, from being tried and punished as an accused. It is the person who effects enticement is to be tried or punished for the commission of the offence under this section. A woman cannot entice herself. It was so held in 1991 PCr. LJ 2140. Further the petitioner being a lady is also entitled for the grant of bail under section 497(1), Cr.P.C. The petitioner is in the judicial lockup and no more required for further investigation. The refusal of bail to the petitioner at this stage will amount to punishment in advance because offence under section 16 is punishable with imprisonment of either description for a term which may extend to seven years which does not fall within the prohibitory clause of section 497, Cr.P.C. It was held in PLD 1995 SC 34 that "grant of bail in a bailable offence is a right while in non-bailable offences grant of bail is not a right but concession/ grace grant of bail in offences punishable with imprisonment for less than 10 years is a rule and refusal an exception."
7. In my considered opinion there exist no exceptional and extra-ordinary circumstances which would justify decline/refusal of bail to the petitioner.
For what has been stated above, this petition is accepted and the petitioner Mst. Fajri is admitted to bail after arrest provided she furnishes bail bond in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of Sessions Judge/Trial Court, Multan.