1989 PLP 4805 (MLD)

Baqar Gardezi for the State. Date of hearing: 7th June, 1989. Bashir Ahmad petitioner who is involved in a criminal case under sections 10 and 16 of The Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, arising out of F.I.R. No. 111 dated 7‑6‑1988, registered at police station Saddar Renala Khurd, Distt: Okara, seeks to be admitted to bail.

2. It has been alleged that Mst. Razia Bibi daughter of Allah Yar of Chak No. 12/1‑R, Teh: & Distt: Okara obtained an ex parte decree for dissolution of marriage against her husband Liaquat Ali on 7‑10‑1987 and that in the meanwhile she developed illicit liaison with the petitioner. It has further been alleged that the petitioner and Mst. Razia Bibi indulged in adultery. Resultantly a boy namely Munir Ahmad born to Mst. Razia on 14‑4‑1988. The petitioner is alleged to have confessed the guilt before the complainant Nehal son of Ahmad, Abdul Ghafoor, Lambardar and Nazar Muhammad son of Murad.

3. Razia Bibi aforesaid, her father Allah Yar, her brother Ibrahim and her mother Mst. Jannat have sworn affidavits that Liaquat Ali had access to Mst. Razia Bibi and that a son has born to Mst. Razia as a result of conjugal union between Liaquat Ali and Mst. Razia. The birth of the child has taken place within 280 days of the passing of the ex parte decree for dissolution of marriage obtained by Mst. Razia Bibi against Liaquat Ali. That decree has not been confirmed by the Arbitration Council concerned.

4. It has been contended on behalf of the petitioner that there is no direct evidence of the commission of Zina by the petitioner and Mst. Razia and that the evidence of extra judicial confession is not reliable and requires to be further probed. The co‑accused, Mst. Razia, has already been admitted to bail by this Court while disposing of Crl. M.No. 1190‑B of 1989. In Oasim Ali v. The State (1986 P Cr. L J 1016), there was no direct evidence of commission of Zina by the accused and the prosecution sought to rely on extra judicial confession. It was held that question of guilt of the accused under the circumstances required further enquiry and thus bail was allowed. Similarly in Zulfiqar and another v. The State (1986 P Cr. L J 1443), no direct allegation of commission of Zina was made against the accused and the accused was exonerated by the abductee through an affidavit. It was held 'in the circumstances that it was a fit case for exercising of discretion in favour of the accused, bail was thus granted.

5. In the present case: as observed earlier, Mst. Razia, her parents and leer brother have sworn affidavits about the innocence of the petitioner and Razia. There is no direct evidence of commission of Zina. The only evidence which the prosecution has been able to collect is that of extra judicial confession.

6. The petitioner in the circumstances is admitted to bail in the sum of Rs. 25,000 with one surety Commissioner, Okara. SA./B‑156/L Bail allowed.