The applicants are facing trial under section 16/18 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 before IIIrd Additional Sessions Judge, Karachi South.
2. The brief facts for the determination of this bail application and as alleged in the F.I.R. Are that the complainant, Muhammad Afzal was married to Allah Bachai alias Hajra daughter of Muhammad Ramzan in presence of relatives and other Bradri people and that Allah Bachai alias Hajra lived for a month in the house with the complainant. Later on mother of Allah Bachai, namely, Motan took her daughter to her house and thereafter as alleged in the F.I.R., Mst. Allah Bachai did not return to the house of complainant. It is further alleged in the F.I.R. That on the instigation of Punhal, Allah Bachai alias Hajra filed a civil suit for Khula' and also lodged a false F.I.R. Of kidnapping against the complainant with Clifton Police Station which resulted in the arrest of mother, sister, brother as well as of the complainant in that case. It is claimed by the complainant in the F.I.R. That they have been acquitted in that case and that the suit for dissolution filed by the complainant's wife, namely Allah Bachai alias Hajra was dismissed and the suit for restitution of conjugal rights filed by the complainant was decreed ex parte. In the end of the F.I.R., it is alleged that (applicant No. l), namely, Ghulam Muhammad, (applicant No.2) Mir Gul and applicant No.3) Mst. Rani got married complainant's wife Allah Bachai alias Hajra with the son of Mst. Rani, namely, Mumtaz without obtaining divorce and that they are not allowing his wife to return to her house and are abetting the crime of Zina.
3. On 12-11-1995 charge-sheet was submitted by the prosecution before the Court of IIIrd Additional Sessions Judge. On 27-10-1995 Mst. Rani was arrested. On 2-11-1995 Ghulam Muhammad was arrested while on 12-11-1995 Mir Gul was arrested. Initially their pre-arrest bail application was rejected by the learned Sessions Judge, Karachi South on 5-10-1995. Thereafter the bail application after arrest was also rejected by the learned trial Court on 27-11-1995. Hence this application. It would be advantageous to mention here that applicant No. 1, Ghulam Muhammad is the step- father of Mumtaz against whom the main allegation of Zina is alleged by the complainant and the second husband of Mst. Rani. Likewise applicant No.2 is the step-father of abductee, Mst. Hajra, and husband of Mst. Motan. Mst. Rani is the mother of main accused Mumtaz.
4. I have heard Mr. Mehmood Baloch, Advocate for the applicants, Mr. Azizur Rehman for the State and Mr. Mazhar A.I B. Chohan, Advocate for the complainant. Today, Mr. Mazhar A.I B. Chohan has filed an application alongwith his Vakalatnama on behalf of the complainant, Muhammad Afzal son of Fazal Muhammad. In this application, he has prayed for adjournment as he has been engaged only yesterday. On 3-1-1996, I have heard both the learned counsel for the applicants as well as for the State at length and the moment when I started dictating order, the complainant filed an application and obtained adjournment for engaging a counsel to plead his case. In the interest of justice, further hearing was adjourned to 4-1-1996 when again identical prayer was made by the complainant which was granted as a last chance. Today, again the same request has been made by Mr. Mazhar A.I B. Chohan. On the question of addressing the Court, Mr. Azizur Rehman has referred to section 493, Cr.P.C. Which provides that although a complainant is entitled to engage a lawyer of his choice to prosecute the case but the such advocate is not entitled to address the Court but to assist the prosecution. However, with the view to obtain best possible assistance from Mr. Mazhar A.I B. Chohan, I have allowed him to inspect the police file and to address the Court. In view of the law cited by Mr. Mehmood Baloch and in view of the peculiar circumstances of the case, Mr. Azizur Rehman, learned counsel for the State has extended his no objection to the grant of this bail application.
5. It is contended by Mr. Mehmood Baloch that in the F.I.R. It is admitted by the complainant that the marriage between Mst. Hajra and Mumtaz A.I was solemnized on 2-5-1992, but the present F.I.R.
Was lodged on 14-9-1995, after a delay of nearly 3 years 4 months and that no explanation for such delay is provided by the complainant in column 5 of the said F.I.R. That the enmity is admitted between the parties and that there is no allegation of commission of Zina against the present applicants. Mr. Mehmood Baloch has also relied upon the case of Pir Bakhsh and another v. The State 1984 PCr.LJ 2425, Mst. Allah Jiwai v. The State 1984 PCr.LJ 129, Mst. Kaniz Fatima alias Malkani v.
The State 1994 PCr.LJ 164, Sultan v. The State 1995 PCr.LJ 625 and Syed Masood Hashmi v. The State 1995 PCr.LJ 1907.
6. Mr. Mazhar A.I Chohan, learned counsel for the complainant has explained the delay by stating that since the complainant was involved in a false case of Zina by the accused party as such he was not able to lodge the F.I.R. Earlier as the police -were reluctant to lodge an F.I.R. During pendency of a criminal case against the complainant which fact he has also stated in his F.I.R. He has also referred to a letter available in the police file which was written by Mst. Jiandi, sister of complainant on 16-11-1994 which is addressed to the then Special Assistant to the Chief Minister Sindh. This letter contains endorsement of the said Special Assistant as well as of S.S.P. South and S.H.O., Clifton Police Station. In this letter, nowhere it is mentioned that what efforts were made either by the complainant or by the applicant, namely, Mst. Jiandi after 2-5-1992 (date of marriage) till writing of the said letter describing any efforts for lodging of any F.I.R. Nothing is alleged against the police in this letter for not lodging the said F.I.R. Even, for the sake of argument, if this letter dated 16-11-1994 is accepted to be the first information under section 154, Cr.P.C., still there remains a delay of more than 2-1/2 years which was not explained by Mst. Jiandi.
7. In the case of Pit Bakhsh and another v. The State 1984 PCr.LJ 2425, a learned Single Judge of this Court Mr. Z. C. Valiani (as he then was) granted bail to the applicants in the case under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the grounds, inter alia, that there was a delay of twelve days in lodging F.I.R. Which was not explained in the F.I.R. One of the grounds for granting bail in the case of Mst. Allah Jiwai 1984 PCr.LJ 129 was that there was delay in lodging F.I.R. Which was not explained. More or less, on the same grounds the bail was extended to the applicants in the other reported cases. I am satisfied that this ground of delay in lodging the F.I.R. Is available as well to the applicants in the instant case.
8. There is another angle available to look at this case, firstly, Mst. Rani is a woman and by virtue of first proviso to section 497(1), Cr.P.C. She being a woman, is entitled for the bail. In this connection, reference can be made to the case of Mst. Iqbal Bibi alias Balo and another v. The State 1985 PCr.LJ 1377 where the applicant was granted bail when she was accused of abduction and abetment of Zina on the prosecutrix (for further reference see the case of Baboo Jana v. The State 1990 PCr.LJ 326: Secondly, there is no direct allegation of commission of Zina as far as applicants Nos.1 and 2 are concerned. The allegations levelled against them at the most amount to abetting the alleged offence. Even on this ground the said applicants are entitled to bail. (See the case of Taj v. The State 1994 PCr.L J.1555). It may be, because of such viewthat the prosecution has filed charge- sheet against the present applicants under section 16 of the 1979 Ordinance which provides maximum punishment of seven years. Mr. Mehmood Baloch has also referred to the case of Francis (Muslim name Muhammad Yaqoob) v. The State 1992 PCr.LJ 981 in support of his contention that where the applicant was charged for an offence not punishable with death, imprisonment for life or with ten years, he is entitled to the grant of bail. In this reported case, a learned Single Judge of this Court, Mr. Qaiser Ahmed Hamidi, J. (as he then was) granted bail to the applicant on this consideration. (For further reference, see the case of Muhammad Sadiq and another v. The State 1995 SCM R 1130).
9. It is vehemently contended by Mr. Mazhar A.I B. Chohan, learned counsel for the complainant that there is sufficient material available against the present applicants to connect them with offence of Zina. According to the learned counsel, it is within the knowledge of all the three applicants that there exists previous marriage of Mst. Hajra with the complainant and despite that they assisted and abetted in commission of Zina by Mumtaz A.I with Mst. Hajra. It is also contended by Mr. Mazhar A.I Chohan that the offence falls under sections 10(2) and 11 of the Zina Ordinance, 1979 but the prosecution has mala fidely filed chaIlan against the present applicants under section 16 of the Ordinance, 1979. Be that as it may, it is sufficient to observe that a remedy was available to the complainant under section 200, Cr.P.C. For filing a private complaint which was not availed by the complainant. It is settled law that where there is an F.I.R. As well as a counter-version through a private complaint it would be the complaint which will proceed first. In view of this settled law, the complainant should have approached the Sessions Court under section 200, Cr.P.C. (For reference see the case of Nur Elahi v. The State and others PLD 1966 SC 708 at 712).
10. I have considered the arguments of all the learned counsel. It will not be proper at this stage to deeply appreciate the prosecution material or the contentions of the complainant. It is an admitted position that this is the fourth F.I.R. Lodged in between the parties which fact appears from the impugned F.I.R. The applicants have also filed copies of two previous F.4.Rs. Bearing No.253 of 1982 dated 11-6-1992 of P.S. Clifton, Karachi, F.I.R. No.33, of 1993 dated 15-12-1993 of P.S. Mehmoodabad and No.105 of 1994 dated 8-6-1994 of P.S. Mehmoodabad. In my tentative view, this is sufficient to establish enmity being existed between the complainant and accused parties. I am also of the tentative view that this is a fit case of further inquiry and the applicants/accused being alleged of an offence punishable with maximum seven years, are entitled to bail. All the observations made hereinabove are tentative in nature and will not prejudice, in any manner, merits of the case before the trial Court. These are the reasons for the short order passed today granting the bail application of the applicants/accused and releasing them upon furnishing sureties of Rs.1,00,000 (Rupees one lac only) each with the P.R. Bond of the like amount to the satisfaction of the trial Court.