1994 P Cr (PLP)

Nafees Ahmad Ansari, AA.-G. for the State. Zulifqar Ali petitioner has moved this application for the grant of post-arrest bail after refusal of the same by the learned Additional Sessions Judge, Multan vide order, dated 11-5-1994 in a case under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, registered against him vide-F.I.R. No.121/1994.

2. The facts of the case are that the petitioner was married with Mst. Amiran sister of the complainant about 10 years ago and two children were born out of the wedlock. Zulifqar petitioner contracted second marriage with a woman namely Shazia Bibi whereupon Muhammad lqbal brother of Mst. Amiran Bibi filed a complaint against him under the West Pakistan Family Courts Act, 1964 and took Mst. Amiran Bibi to his house. Later, the petitioner on 16-11-1993 came to the house of Riaz Hussain another brother of Mst. Amiran and in presence of the complainant the witnesses and Mst. Amiran levelling allegation of adultery against her in the following words pronounced Talaq to her:-- Mst. Amiran Mai refuted the allegation on oath but the petitioner extending threats to kill her left the place of occurrence. The case was registered on the report lodged by Muhammad Iqbal real brother of Mst. Amiran under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and petitioner was accordingly arrested.

3. It is contended by the learned counsel for the petitioner that complainant party being revengeful to the petitioner on account of his second marriage has got a false case registered against him. He submits that the offence with which he is being charged provides sentence of stripes only and that the detention of petitioner in jail for an indefinite period is not legal.

4. The learned AA.-G. appearing on behalf of the State has opposed the bail on the ground that the petitioner having committed an offence of Qazf, his detention in jail till the conclusion of trial Court to be called in question.

5. According to the prosecution allegations, the petitioner levelled allegation of adultery against his wife Mst. Amiran in presence of witnesses, the report of which was lodged by her brother, Muhammad Iqbal. The question fell for determination is as to whether the petitioner could be proceeded against on the basis of report lodged by Muhammad Iqbal without the express authorisation by Mst. Amiran in terms of section 8 of the Offences of Qazf (Enforcement of Hadd) Ordinance, 1979 which reads as under:-- "That no proceedings under this Ordinance shall be initiated except on a report made to the police or 'a complaint lodged m a Court by the following namely: , (a) if the person in respect of whom the Qazf has been committed is alive, that person, or any person authorised by him; or (b) if the person in respect of whom the Qazf has been committed is dead, any of the ascendants or descendants of that person." The examination of section 8 of the Ordinance makes it clear that either a person in respect of whom the Qazf has been committed if alive or a person authorised by him can lodge the report and none else. The second question whether an offence which does not provide the sentence of imprisonment, the offender cannot be kept in jail till the trial is concluded against him is also debateable, however, in such cases which do not provide A sentence of imprisonment, the bail is granted as of rule. The delay of 4-1/21 months in lodging the report remained unexplained. Notwithstanding the validity of proceeding initiated against the petitioner under Qazf Ordinance, the only sentence of stripes having been provided for the offence allegedly committed by the petitioner, his detention in jail for indefinite period without trial is not justified. In fact in such case the trial of an accused is to be necessarily concluded within minimum time. The petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of A.C./Duty Magistrate, Multan. N.H.Q./Z-129/L Bail granted.