1. ' The facts leading to the present application for bail are that applicant/accused Mst. Soni daughter of Mukhtiar Shambani is facing trial before Additional Sessions Judge (Hudood) Sukkur under sections 10, 11 and 14, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The case arose out of F.I.R. No,48 of 2002 of Police Station Salehpat.
2. ' The brief facts of the prosecution case as disclosed in F.I.R. Lodged by complainant Ghulam Qadir Shambhani on 26-8-2002 are reproduced herein below in extenso:-- "Complaint is that on 23-5-1997, I married with Mst. Soni daughter of Mukhtiar by Caste Shambani according to Shariat. On 4-11-1999, she filed civil suit in Family Court for obtaining Talaq', which was dismissed on 6-4-2002. After that in Civil Court, I filed appeal on 28-4-2000. Thereafter, the matter was settled in Brothery, and Mst. Soni was given to me. She started living with me. On 5-7-2002 (1), Haji Noor Muhammad son of Sanjar (2) Brother Lal Muhammad son of Allah Dino Shambani were present in the house when accused (1) Gohram son of Mukhtiar Shambani, (2) Manzoor son of Nek Muhammad alias Bingo, (3) Aziz son of Nek Muhammad alias Bingo, (4) Dodo son of Nindo by Caste Shambani, came and enticed away my wife Mst. Soni at Fajjar prayer time. They were identified by the above said witnesses. The Gohram Shambani brother of Mst. Soni got performed her Nikah with Manzoor Shambani against monetary consideration. The Nikah was recited by Maulvi Muhammad Bux. During the subsistence of previous Nikah, the second Nikah with Manzoor Shambani and handing over her, custody to him is against Shariah. They have caused me hardship. They enticed away my wife malafidely. At present Mst. Soni is living with Manzoor Shambani. By consent they are committing Zina. I made such application to Sessions Judge, Sukkur and the said Court has ordered for the registration of case. Now I have come and report that accused (1) Guhram, (2) Todo, (3) Manzoor, (4) Azim Shambani have enticed away my wife Mst. Soni. They have performed her Nikah with Manzoor Shambani which was recited by Hafiz Muhammad Bux Soomro during subsisting of previous Nikah. They are committing Zina. Action may be taken."
3. ' The applicant/accused applied for bail before the trial Court but her bail plea was dismissed by impugned order, dated 11-4-2003.
4. ' I have heard Mr. Manzoor Ahmed Junejo, learned' counsel appearing on behalf of applicant/accused, Mr. Haji Abdullah Memon learned counsel on behalf of complainant. He has opposed the bail plea of applicant/accused. I have also heard Mr. Moula Bux Khoso learned counsel appearing on behalf of Advocate-General for the State. The latter conceded to the grant of bail.
5. ' At the very outset it is contended by Mr. Junejo that he presses IA bail plea of applicant/accused on the sole ground of pregnancy.
6. ' The perusal of material placed on record shows that the applicant/accused was arrested on 29- 3-2003 and since then she is continuously in custody. In order to ascertain the factum of pregnancy, the applicant/accused was referred to Civil Hospital, Sukkur for her medical examination and report. The report received from Civil Surgeon Civil Hospital, Sukkur shows that applicant/accused is at advance stage of pregnancy. It will be pertinent to reproduce herein below the medical certificate issued by Civil Surgeon, Civil Hospital, Sukkur:-- "Phone No,9310127, ' Office of the Civil Surgeon, Civil Hospital, Sukkur.
7. ' No,CMS/2003/UTP/9811/dated the 12th July, 2003. To ' The Assistant Registrar, Honourable High Court of Sindh, Sukkur.
8. ' Subject. Medical examination of Mst. Soni daughter of Mukhtiar.
9. ' Reference Honourable Court letter No,3315, dated 7-7-2003.
10. ' I have the honour to submit that the above named lady (UTP) was examined by the Gynecologist of this hospital Dr. Nigar Fatima on 12-7-2003 who opined that she is pregnant of about 24 weeks and her E.D.D. (Expected date of delivery) will be 2nd week of October, 2003 and advised for treatment.
11. (Sd.) Civil Surgeon, Civil Hospital, Sukkur.
12. ' Copy to the Superintendent Central Prison-II, Sukkur for information with reference to his office letter No,UTP/1617, dated 11-7-2003.
13. (Sd.) Civil Surgeon, Civil Hospital, Sukkur."
14. ' In the case of Mst. Shamim Akhtar v. The State reported in 1991 PCr.LJ 1079 a Bench of this Court granted bail to a lady accused who was at advance stage of pregnancy.
15. ' In the case of Mst. Zarina v. The State reported in 1991 M LD p.518 a Bench of Lahore High Court granted bail to a lady accused involved in a case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The relevant observations are reproduced hereinbelow:- - ' On the enforcement of Qisas and Diyat Ordinance, it is no more possible to send or keep a pregnant or female accused carrying suckling babies till the expiry of the period of (URDU TEXT). In Islam punishment cannot be executed on mother (in a family way) till expiry of the period of (URDU TEXT) of the child. Then how can she be sent to jail at a age (during trial) when she is presumed to be innocent. The Presiding Officers have to bear in mind the prevalent circumstances of our society and other human reactions and consideration and it is with this purpose that a discretionary jurisdiction to allow bail in a suitable case is vested in Courts'. I feel that it is better to err in releasing female accused carrying suckling baby on bail than in remanding her child alongwith her to jail during trial."
16. ' Resultantly looking towards the peculiar facts and circumstances of the case, applicant/accused is granted bail in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.