' The instant bail application is an outcome of Crime No,97 of 1997 registered at Police Station Gizri, Karachi and has been moved on behalf of the applicant by his counsel on rejection of similar request by the trial Court vide order of 24-12-1997. Along with it, Criminal Suo Motu Revision No,16 of 1998 has also been placed for hearing.
2. This bail application was previously heard by my respectable brother Mr. Hamid Ali Mirza, J. On 9- 2-1998 who after hearing the learned counsel for the applicant/accused passed orders directing to issue show-cause notice to co-accused Mst. Zahida Sultana to whom bail was granted by the learned trial Court. The relevant portion of these orders are reproduced below:-- "Before considering the bail application of applicant/accused in the circumstances of the case, to issue show-cause to co-accused Mst. Zahida Sultana to appear before this Court and explain as to why bail to her granted by the trial Court should not be cancelled."' Subsequently, in pursuance of an order passed on 11-2-1998, a separate number viz. Suo Motu Reference No,16 of 1998 was assigned to the show-cause notice so issued as is mentioned above.
3. Both the bail applications and S.M. Revision were placed before my respectable brother Mr. Hamid Ali Mirza, J. But the matter could not proceed for one or the other reason. On an application for taking up this matter urgently, orders have been passed on 20-6-1998 which are available on record that this matter be fixed according to roster of sitting. In pursuance of these orders the matter has come up before me.
4. In response to show-cause notice issued to co-accuse Mst. Zahida Sultana she is present in the Court and is represented by Mr. Sarfraz Khan Tenoli, Advocate. Mr. Mir Afzal Khan, Advocate who filed his power on behalf of the complainant vide orders, dated 18-5-1998 is also present.
5. As per prosecution case complainant Shoukat Baig alleged that he married co-accused Mst.
Zahida Sultana who was working as a Nurse in Jinnah Hospital. He had a daughter of 15 years from her and a son of 10/11 years. In the year 1994, he left for America in connection with his business where his wife and children are living. He used to send expenses to his second wife Zahida Sultana.
She also received Rs,12,000 per month as a rent of 1st floor of a bungalow which he had purchased in her name in the city of Karachi and she lived there with her children. On 29-1-1997 he received a registered envelope in which Mst. Zahida Sultana had sent to him a divorce deed with his forged signatures thereon. On this, he returned to Pakistan but could not find Mst. Zahida Sultana, hence he went back. When he came again to Pakistan he learnt that by preparing a forged divorce deed she married one Aijaz being already a married man. Mst. Zahida Sultana and Aijaz are guilty of Zina having performed Nikah by forging a divorce deed.
6. I have heard all the learned counsel appearing for the applicant/accused and co-accused Mst.
Zahida Sultana, complainant and the State Counsel. I have also gone through the impugned order.
7. The counsel for the applicant/accused argued his case and submitted that the allegation made by the complainant are common and that the documents viz. Divorce deed and other are not forged and the complainant has instituted a Civil Suit No,226 of 1997 to have them declared so. The said suit is pending. He contended that in fact complainant has raised a dispute with lady co- accused over a property namely residential house and he has filed on 30-4-1997 a suit for declaration and possession before this Court. The learned counsel submitted that criminal liability as alleged is dependent on determination of controversy in the foretasted civil proceedings hence at present it is still a matter of further enquiry. He submitted that in case the forgery is proved against the accused persons the prosecution shall be at liberty to move application under section 497(5), Cr.P.C., however, at present there is no tangible material available to conclude that the applicant accused has forged the divorce deed and other documents. Lastly, he contended that the F.I.R. Has been lodged with inordinate delay of 10 months, which in the circumstances of the matter, cast doubts on the case of prosecution impairing it considerably and that according to him, the delayed F.I.R. Has been lodged only to frighten and harass the lady accused to abandon her rights in the bungalow. He has placed his reliance on the case-law reported in Ghulam Ghaus v. Muhammad and others 1997 SCM R 37.
8. The learned counsel for lady co-accused appearing in S.M.R. No,16 of 1998 submitted his arguments contending that she was granted bail by the learned trial Court being mother of a suckling child aged two months. Besides, enmity of complainant with the accused lady is spelt out from litigation which cast doubts on the prosecution case specially when the crime has been lodged with an inordinate and unexplained delay. He contended that the bail was granted to the lady accused by a competent Court which may not be cancelled as the same shall cause harassm ent to her being a mother of suckling baby. He placed his reliance on case reported as Shamsur Rahman v. Muhammad Rafiq PLD 1997 Kar. 184, Gulzar Ahmed v. The State and others 1997 M LD 1606, Ghulam Muhammad and 2 others v. The State 1997 M LD 286, Fateh Khan v. The State 1972 PCr.11 125 and Ghulam Ghaus v. The State 1997 SCM R 37.
9. The learned counsel for complainant argued that the complainant had not divorced the lady accused Mst. Zahida Sultana and bond of marriage between them existed, the divorce deed had been forged. He submitted that the statement of P.W. Yameen, who is a Punchayat Clerk is very important which casts doubts as to genuineness of divorce deed and order of confirmation thereof. He contended that there is no confirmation certificate to establish that divorce has taken place and the said certificate has been forged. He, however, submitted that as per law no certificate is necessary but it is practice that such certificate is issued by the Chairman. Lastly, he submitted that he has not moved application for cancellation of by the learned lower Court to the co-accused Mst. Zahida Sultana under its order, dated 2-12-1997 but has joined the proceedings on issuance of suo mow notice to her. He requested that the to the co-accused Mst. Zahida Sultana be cancelled and that bail application moved by the applicant/accused Aijaz may be dismissed.
10. The learned State Counsel submitted that the statement of P.W. Muhammad Yameen, Panchayat Clerk was recorded who in his statement showed his ignorance about the issuance of the order of Chairman, Union Council jurisdiction Karachi East to show that the divorce had become effective, however, the said witness Muhammad Yameen stated that since the powers of Arbitration Council concerning the confirmation of Talaq were vested in one Abbas Naqvi a member of arbitration council and also Chairman of Punchayat Committee he be approached if felt pertinent to know about the confirmation order dissolving the marriage in-between the complainant and co-accused. The learned State Counsel argued that at the moment validity of divorce deed is under dispute in civil litigation and said deed disclosed that intimation of the divorce was communicated to the Chairman of Union Council, Karachi East on 2nd August, 1996 who issued notice which were received by the son of the complainant (respondent in those proceedings) from his first wife and put an endorsement thereon that he would inform his father and on another notice he endorsed that his father was intimated by him. According to the learned counsel for the State, order was passed by the Chairman, Union Council jurisdiction Karachi East after expiry of 90 days and that the co-accused Zahida Sultana thereafter married the applicant Aijaz on 11-1-1997. He argued, it is an admitted position that the F.I.R. Was lodged on 31st October, 1997 though the incident is alleged to have taken in the month of January, 1997 and admittedly there is a civil litigation in-between the complainant and the co-accused Mst. Zahida Sultana relating to the validity of the divorce deed and the order of the Chairman, Union Council and the property viz. a bung-low in a posh area f Karachi city standing in the name of the lady accused and the complainant claims the same to be owned by him Benami. The learned State Counsel contended that actual dispute is over the property as aforementioned and in the circumstances the delayed F.I.R. Casts doubts on the truthfulness of prosecution case. He conceded that the matter is of further enquiry and gave no objection to the grant of the bail to the applicant/accused and also, he suggested that the show-cause notice issued to the lady accused be withdrawn.
11. I have considered the arguments of the learned counsel for the applicant/accused, lady co- accused Mst. Zahida Sultana lid the learned counsel for the complainant and learned State Counsel. I have also gone thre -gn the impugned order, dated 2-12-1997 passed by the learned lower Court granting bail to lady co-accused. The order granting the bail to the lady accuF -d by the learned lower Court shows that the has been given benefit of proviso one of section 497(1), Cr.P.C. Considering her as a woman a mother of a st ;kling child aged two months considering the case-law reported in 1996 SCM R 973 wherein it has been observed:-- "The concept of ' welfare of minor' is incompatible with jail life. So, instead of detaining the innocent child/infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor if the mother is released from the jail. In famous case of Ghamidiyyah, our Holy Prophet Muhammad (p.b.u.h.) had suspended the sentence on pregnant woman, not only till delivery of the child but also postponed it till suckling period i,e, two years, obviously for the welfare of the child. This shows the paramount importance and significance of the right of a suckling child in Islam and the unprecedented care taken of, and the protection given to a child born or expected to be born, by our Holy Prophet Muhammad (p.b.u.h.). This golden principle of an administration of justice enunciated by the Holy Prophet Muhammad (p.b.u.h.) must be strictly observed and followed in our country."
' It has been held in case reported in 1986 MLD 241:- "Once. Bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the game. Provision of section 497(5), Cr.P.C. Are not punitive. There is no legal compulsion for cancelling in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty.
Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into the guilty of the accused."
There is no denial that the lady accused is not a mother of suckling child aged about two months.
The learned lower Court while granting bail to lady accused gave directions that the accused was required to join the investigation as and when required. There is also nothing on the record that the lady accused has not followed the directions given by the learned lower Court while granting the bail to her. In view of aforementioned circumstances and the case-law in my humble view the learned trial Court has not acted in an arbitrary manner much less capriciously. Accordingly, I recall the show-cause notice issued to the lady accused Mst. Zahida Sultana. The Suo Motu Revision No,16 of 1998 is disposed of accordingly.
' As far the case of the applicant/accused Aijaz is concerned he has married the lady accused on 11-1-1997. There is allegation by the complainant in his F.I.R. That the applicant/accused prepared Talaqnama by committing forgery. It is a matter of the record that the divorce deed and the order showing affirmation of Talaq is under litigation in Suit No,226 of 1997 and it is yet to be decided by that Court if these two documents are forged or otherwise. Besides, I have gone through the copy of the plaint in Suit No,581 of 1997 filed by the complainant. It relates to the dispute in respect of bungalow filed by complainant against the lady accused. I have also gone through the certified true copy of the plaint in Suit No,226 of 1997. It reveals that the complainant arrived in Pakistan learning ,about the fact of alleged divorce. He first of all instituted Suit No,591 of 1997 on 30-4-1997 claiming to be owner of the bungalow which stands in the name of lady accused then he instituted Family Suit No,226 of 1997 on 13-5-1997 challenging the divorce deed and other documents and thereafter waiting for about more than five months lodged the F.I.R. Against both the accused.
There is no explanation as to why the complainant preferred to lodge the F.I.R. After such an inordinate delay when according to him, he knew of forged documents of Talaq and confirmation thereof at least on the day when he instituted Suit No,591 of 1997 on 30-6-1997. In these circumstances, in my opinion the delay is likely to cast doubt on the belated lodged F.I.R. Besides the result of litigation pending before the Family Court in Family Suit No,226 of 1997 is also bound to affect the prosecution case. The learned State Counsel invited my attention to a letter written by Nikah Khawan (Registrar of Nikah) that this accused married the lady accused in congregation of house-mates, relatives and friends. The lady co-accused is already on by the lower Court. In this situation of the matter I am of the considered view that the applicant/accused is entitled to the grant of bail. Accordingly, he is admitted to bail on his furnishing one surety in the sum of Rs,3,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.