Mst. Jind Waddi petitioner sought bail after arrest in case F.I.R. No.220 dated 5-11-1995 under section 10, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 of P.S. Shah Jamal, District Muzaffargarh against the petitioner and her co-accused Abdul Qadir on the statement of Hafiz Ghulam Hussain.
2. It is stated in the F.I.R., that Mst. Jind Waddi wife of the complainant developed illicit relations with Abdul Qadir, nephew of the complainant and on 18-10-1995 at about 9-30 p.m. The complainant gave them a surprise and saw that both were committing Zina- bil-Raza in the cattle-shed situated contiguous to his residential house situated in village Kacha Khanchar in the local limits of P. S. Shah Jamal.
2. It is submitted by the learned counsel for the petitioner that a false case has been registered against the petitioner on account of family dispute; that the complainant did not maintain the petitioner properly and consequently she filed a suit for maintenance on 22-10-1995.
3. It was further submitted that being annoyed on the filing of suit for maintenance the present case was registered against the petitioner and her co---accused on 5-11-1995; that the petitioner being a woman is entitled for the grant of bail and that the petitioner is in the judicial lock-up and no more required for further investigation.
4. Learned counsel for the complainant and the State argued that the petitioner has committed heinous offence of Zina bil-Raza and there was no reason whatsoever to falsely involve his own wife and nephew and the offence alleged against the petitioner falls within the prohibitory clause of section 497, Cr. P. C.
5. I have heard the learned counsel for the parties and have gone through the record.
6. Admittedly suit for maintenance was filed by the petitioner against the complainant on 22-10- 1995 and the present case was lodged on 5-11-1995 i.e. 13 days after the filing of the suit for maintenance which would prima facie show that relations between the complainant and the petitioner were not cordial. It would be difficult to believe at this stage that the petitioner would indulge herself in the commission of Zina at 9-30 p.m. At a place contiguous to the residential house of the complainant where the second wife of the complainant also resides. It is stated in the F.I.R. That a bulb of 0 watt. Was lit in the room where the accused were committing Zina and the complainant and Ghulam Hussain and Muhammad Ramzan P.Ws. Saw the occurrence by peeping into the room through the door. These narrations of fact in the FIR and the circumstances under which the P. Ws. Claimed to have witnessed the petitioner and her paramour committing Zina with each other is not acceptable in the normal course. However, even if they could witness the occurrence as they claimed their conduct is highly unfair to be truthful witnesses. The credibility of such witnesses being not free from criticism, their evidence lacks the necessary qualification of fairness and cannot be utilized to curtail the liberty of the petitioner.
7. Having discussed the conduct of the witnesses and the background in which the present case was registered against the petitioner, reasonable grounds exist for further enquiry into the guilt of the petitioner and she by virtue of section 497(2), Cr.P.C. Has earned a right of bail, in addition to the concession available to her on the basis of sex. Consequently this petition is accepted and the petitioner is directed to be released on bail subject to her furnishing bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of Sessions Judge/Trial Court, Muzaffargarh.
Any observation made in this order shall have no bearing on the facts of the case. The learned trial Judge shall form his own opinion on the basis of evidence produced before him during the trial.