' The petitioner is involved in case F.I.R. No, 142 of 1997, dated 17-7-1997 for offences under section 10(2) of the Offence Of Zina (Enforcement of Hadood) Ordinance, 1979 read with sections 420/468/471/494 and 485, P.P.C. Registered at Police Station Fateh Sher, District Sahiwal.
2. The complainant Zulfiqar Ali is brother of the petitioner and has alleged in the F.I.R. That Munir Ahmad and other accused persons came to his house and forcibly abducted Mst. Asia Parveen, put her in wagon and carried her away and that his sister Mst. Asia Parveen was married with Khalid Pervaiz on 29-11-1996 and that Munir Ahmad prepared a bogus Nikahnama of Mst. Asia.
3. The petitioner was arrested in the said case and was pregnant with the wedlock of Munir Ahmad and a son was born to the petitioner in the jail on 12-3-1998. Prior to the registration of the case, the petitioner had filed Writ Petition No, 3188 of 1997 before this Court wherein a complaint was made about the conduct of the S.H.O. And a payer was made that he should be directed not to harass the petitioner nor interfer in the matrimonial affairs of the petitioner and on 2-5-1997 a direction was issued accordingly by this Court.
4. Earlier, the bail application of the petitioner was rejected by the learned Additional Sessions Judge, Sahiwal on 27-4-1998.
5. Now the petitioner seeks bail on the grounds of her innocence and being a woman on the strength of first proviso to section 497, Cr.P.C. And for the reason that looking after the child born in jail was not possible and that on merits, there is delay of 3/4 months in lodging the F.I.R. Without any plausible explanation and that she had contracted marriage with her own free consent being major on 28-3-1997 with Munir Ahmad according to law of the land and the Sharia and that offence of zina was not committed and that Nikahnama with Munir Ahmed was genuine and with Khalid Pervaiz was bogus and that a suit for jactitation of marriage has been filed by the petitioner against Khalid Pervaiz who has also filed a suit for restitution of conjugal rights before the learned Judge Family Court and that during the investigation the police has declared the petitioner innocent and it was due to political influence that the petitioner has been challaned to the Court.
6. The petition is opposed on the grounds that the petitioner is specifically named in the F.I.R. With a specific role and that the contention that the child was born in the jail is incorrect because the child was born on 12-3-1998 while she was sent to jail on 19-4-1998 and that Nikah with Khalid Pervaiz was conducted on 29-1-1996 and in the presence of that Nikah, second Nikah could not be conducted and that both the Nikahnamas were sent for verification of the signature of the petitioner and according to report of the Finger Print Bureau, both the Nikahriamas bear the signature of the petitioner and that the offence is hit by the prohibitory clause of section 497, Cr.P.C.
As the sentence is stoning to death and that only 20/22 days have passed that she is sent to jail.
7. I have given due consideration to valuable arguments on both the sides and have gone through the record.
8. The factum of denail of Nikah with Khalid Pervaiz, suckling baby with her in the jail, the investigation having been completed, nothing is to be recovered from the petitioner and the opinion of the Finger Print Bureau that on both the Nikahnamas, the signatures are that of Asia Perveen, the petitioner and that the Nikahnama of Khalid Parvaiz is an afterthought story as his name was never mentioned in the applications moved to the Chief Minister and other executive Authorities makes the case one of further inquiry.
9. At this stage, learned counsel for the complainant has taken the stand that in case the petitioner is released on bail, she will be given opportunity to live with a person against whom a case of zina has been registered. In reply to this, learned counsel of the petitioner submitted that the story of Nikah with Khalid Pervaiz is an afterthought just to cause harassment in the matrimonial affairs in the presence of valid Nikahnama with Munir Ahmad.
10. In these circumstances, this petition is allowed and the petitioner is granted 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 the trial Court. Learned counsel for the complainant has opposed the production of bail bond by the parents of Munir Ahmad and has insisted that she should be released only on the bail bond of her father or brother. To meet this argument, the learned counsel for the petitioner has drawn my attention to the case of Mst. Afshan Bibi v. The State (1998 SCM R 6) wherein the bail granting order passed by the High Court was modified to the extent that the accused would be released on bail on furnishing surety of her choice in the same amount as directed by the High Court, so this argument of learned counsel for the complainant is repelled.