1. ' This is bail application filed on behalf of the applicant Jaro Khan son of Ghulam Hussain Khoso who is facing trial under section 18, Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. ' The allegations against the applicant as per F.I.R. No,92 of 1997 lodged by the complainant Mst.
3. Malak wife of Qurban Ali on 19-9-1997 at 8-30 hours at Kotri Police Station are that marriage of her son Ghulam Abbas had taken place on 18-9-1997 with the daughter of Yagoob Khoso. The applicant had also come in the marriage on the previous night, after taking meals they slept in the house. The applicant Jaro slept on the cot at Karachi Wah. It is further alleged in the F.I.R. That in the mid-night, she felt pain in stomach as such, she was going to the Jungle to ease herself but suddenly the applicant came in front of her and caught her hand and fell her down and tried to commit forcibly Zina with her but on her cries her son-in-law Hussain Bux and other came and seeing them, he left her and slept on the cot, where Hussain Bux caused him Lathi blows and he ran away from the spot. Then the complainant lodged the F.I.R. It may be stated that the applicant on 19-9-1997 at 13-30 hours lodged report complaining therein that he had attended the marriage of the daughter of Yagoob Khoso and after Nikah, he went to sleep on a cot at Karachi Wah when in the mid-night he received the blows on his head and he saw there Hussain Bux, Ghulam Ali and Imam Ali having Lathis in their hands, who asked him as to why he had come there when he was forbidden to come. No action appears to have been taken on the report as it was entered as non- cognizable case.
4. ' The applicant filed Bail application in the Court of Additional Sessions Judge Kotri which has been dismissed by the order, dated 21-10-1997.
5. ' I have heard Mr. Gul Muhammad Abro, learned counsel for the applicant and Mr. Chaudhry Bashir Ahmed for the State. I have also gone through the F.I.R. Lodged by the complainant as well as the report of the applicant. I have also perused the order of the learned trial Court rejecting the Bail application.
6. ' Mr. Gul Muhammad Abro, learned counsel for the applicant has submitted that the story as set up in the F.I.R. Is false and not believable and that the applicant is aged about 55 years old and it is not believable that he would try to commit Zina in a place where marriage had taken place and there were many persons in the village. The learned counsel submits that the applicant had also lodged report against Hussain Bux and others and having caused Lathis blows to him and which version is correct is yet to be determined at the trial. The learned counsel argues that in any case there is only allegation of an attempt to commit offence as such, the offence will be punishable only with 5 years and does not come within the Prohibitory Clause. In support of his arguments, the learned counsel has relied upon 1992 PCr.LJ page 590.
7. ' Mr Chaudhry Bashir Ahmed, learned counsel for the State has conceded to the grant of the bail to the applicant.
8. ' I have considered the respective submissions of the learned counsel for the parties. I have also considered the case law and the order of the trial Court rejecting the bail application.
9. The allegations against the applicant are only of an attempt of committing Zina and there is no allegation against him that he tried to remove Shalwar of the complainant or did commit any other serious overt act, so as to indicate or give impression that he actually wanted to commit Zina with her. Under the circumstances of the case, even if the version of the complainant as contained in the F.I.R. Be presumed as correct, the offence against the applicant may even fall under section 354, P.P.C., which is a bailable offence. From the report of the applicant and injuries on his person said to be caused by P.Ws. Hussain Bux and others, there appears some background of enmity between the parties or at least some grouse against him. The case appears to be of two counter- versions and which of the version is correct requires determination at the trial. In any case, the alleged offence under. Section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 does not come within the Prohibitory Clause and the applicant is entitled to bail, in view of law laid down in the case of Tariq Bashir and others v. State, reported as PLD 1995 SC page 34.
10. ' Considering all the aspects of the case, two conflicting reports of the parties and the case-law referred to above, I am of the view that the case of the applicant requires further enquiry as contemplated under subsection (2) of section 497, Cr.P.C. As such, the applicant is entitled to bail. I, therefore, allow Bail Application No,560 of 1997 and order that the applicant shall be released on bail on his furnishing one surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
11. ' The above assessm ent is of tentative nature and the trial Court is not to be influenced by such tentative assessm ent and it may reach its own an independent conclusion and finding after evidence is recorded.
12. ' The bail was granted to the applicant by my short order dated 27-11-1997 and above are the reasons of my short order.