1991 P Cr (PLP)

Ghulam Mustafa and Ijaz Ahmad Gillani for Petitioners. A.D. Khan for the Complainant. Ch. Ali Muhammad, A.-G. and Sardar Muhammad Sadiq Khan Addl. A.-G. for the State. A case under sections 10, 16 and 19 of the Offence of Zina (Enforcement of Hudood) Ordinance and section 14 of the Offence Against Property (Enforcement of Hudood) Ordinance having been registered against the accused- petitioner Mst. Safia Sultana and co-accused Arshad Ahmad by Muzaffarabad police, she and the co-accused applied for bail which was declined by the Tehsil Criminal Court Muzaffarabad on 18-1-1990. On a revision petition filed by the accused, they were allowed bail by the Shariat Court on 14-2-1990. Petitioner Safia Sultana was released on the surety bond of one Maqsood, a non-Mehram. The complainant Ch. Muhammad Tariq challenged the correctness and legality of the order of the Shariat Court by way of appeal before the Supreme Court of Azad Jammu and Kashmir. The order allowing bail to the accused-petitioner Mst. Safia Sultana and co-accused Arshad Ahmad passed by the Shariat Court on 14-2-1990 was kept intact by the Supreme Court. It was however, held by the Supreme Court that the question as regards surety in case of petitioner Mst. Safia Sultana was not attended to by the Shariat Court in the light of the judgment of the Supreme Court in case titled Muhammad Ayub v. Mst. Nasim Akhtar 1984 P Cr. L J

160. The case was remanded back to this Court for consideration as to whether a female accused could be released on surety of a non-Mahram.

2. Mr. Ghulam Mustafa Mughal, learned counsel for the accused-petitioner argued that the question as regards surety has to be considered in the light of the facts and circumstances of this case. He then submitted that the father of the accuse-petitioner had married the mother of the petitioner who was resident of Lahore. Out of their wedlock petitioner was born at Lahore. She also received her education at Lahore as her parents after their marriage resided in Lahore. The petitioner, according to the learned counsel, was also married with the co-accused Arshad Ahmad at Lahore on 25-10-1989 and their Nikah was duly registered there. After having been married with the co-accused she give birth to a child who is hardly 2-1/2 months old. Since her father was now residing with his first wife at Muzaffarabad and did not approve the petitioners marriage with the co-accused, a false case was managed by him to be registered against her on report made by one Ch. Muhammad Tariq who falsely claim to be her husband. The falsity of the prosecution case, according to the learned counsel, was evident from the photo, copy of a `Khutba-e-Nikah', which does not bear either thumb-impression or the signature of the accused-petitioner. Besides under the provisions contained in the Nikah Registration Act, 1985, a Nikah was compulsory to he registered and it is no case of the prosecution that the Nikah between the complainant, the alleged husband and the accused-petitioner was registered in Azad Kashmir. So therefore, the very special circumstances and facts of this case have got to be taken into consideration especially when the accused-petitioner is also having a child of 2-1/2 months age while passing the order as regards surety. The facts in Muhammad Ayub v. Mst. Nasim Akhtar's case were distinguishable and the principle enunciated therein was not applicable in the case. In view of the peculiar circumstances of this case it was a fit case for departure from the general rule enunciated in Msc. Nasim Akhtar's case, submitted the learned counsel. The release of the accused-petitioner on the surety bond of Maqsood under the circumstances was perfectly valid and suffered from no legal infirmity, argued the learned counsel.

3. Controverting the arguments, Mr. A.D. Khan, learned counsel for the complainant submitted that under no circumstances the accused-petitioner could be released on the surety bond of a non-Mehram as the principle enunciated and the rule laid down in Muhammad Ayub v. Mst. Nasim Akhtar's case was fully applicable in the instant case and any departure from that would be violative to the Islamic principles. The learned counsel further argued that the surety in the present case would hand over the accused-petitioner to the co-accused and would facilitate the repetition of the offence of Zina. As, according to the learned counsel, a non-Mehram could not be a surety for a female accused, the surety bond filed by one Maqsood who is not related within the prohibited degree with the accused-petitioner ought therefore, be cancelled. The learned counsel placing reliance on the rule laid down in Mst. Nasim Akhtar's case also referred to 1983 a P Cr. L J 1411 and 1990. 4, The learned Advocate-General and the Additional Advocate-General were also heard on the point who submitted that the facts in Ms;. Nasim Akhtar's case 1984 P Cr. L J 160 were not identical to those in the instant case. They also submitted that in the light of rule laid down by the Supreme Court of Azad Jammu and Kashmir in Muhammad Bostan v. Mst. Chulandra Begum, decided on 28-6-1989, the principle enunciated in Muhammad Ayub v. Mst. Nasim Akhtar's case was not an inflexible rule.

5. I have heard the learned counsel for the parties and have given my deep thought to the points raised on their behalf. I have carefully gone through the report of the case titled Muhammad Ayub v. Mst. Nasim Akhtar 1984 P Cr. LJ

160. As appears from the report of that case Muhammad Ayub appellant in that case was admittedly the husband of accused-respondent Mst. Nasim Akhtar. According to the report made by the complainant, she had developed illicit relations with one Abdul Khaliq a co-villager who had abducted her. It was no case of the accused-respondent in that case that Mst. Nasim Akhtar had either been divorced,, by her husband Muhammad Ayub or that she had married Abdul Khaliq thereafter. The surety in that case was a non-Mehram who had helped the respondent Mst. Nasim Akhtar and co-accused to live together after the release on bail. In the instant case the accused-petitioner denies having ever been married to complainant Ch. Muhammad Tariq. Her case is that she was the lawfully wedded-wife of the co-accused Arshad Ahmad and their Nikah was duly registered at Lahore on 25-10-1989, photo copy of which has also been placed on record marked as Annexure `A'. Another very important circumstance that needs to be taken note of is that out of this union a child is also born who is now 2-1/2 months old. Her mother and all her relations from the maternal side, according to her, are permanent resident of Pakistan. It thus becomes clear that facts of Mst. Nasim Akhtar's case are quite distinguishable from those in the instant case.

6. The point as regard the surety came to be considered by the Supreme Court of Azad Jammu and Kashmir in an unreported case titled Muhammad Bostan v. Mst. Chulandra Begum, decided on 28-6-1989. While considering the proposition the Supreme Court observed: "It may however, be clarified that it is not an inflexible rule that for every female accused the person who stands surety must be a Mehram. A reading of Para.18 of the judgment in Nasim Akhtar's case would plainly show it was in the circumstances of the case in which this conditional order was passed. The Courts cannot sit with folded hands and watch a female accused languishing in lock-up when it is either impossible to act upon this direction or when the conscience of the Court is satisfied that cogent reasons exist which necessitate departure from this rule. The Shariat Court was however not justified in forming the view that this direction may be given in very exceptional circumstances. We hold that the correct position is to the contrary. Standing of Mehram as surety is a rule which may be departed from in exceptional cases where a proper case is made out, but in no case the female can be released on the surety of a person who may facilitate the repetition of the alleged offence as is the present case." Considering the proposition in view of the accompanying facts in the instant case in the light of observation made in Muhammad Bostan's case, I am of the view that exceptional circumstances of the case necessitate a departure from the general rule as regards surety in the case of a female accused. As regards Maqsood surety, there is serious complaint against him that he had handed over the accused-petitioner to the co-accused Arshad Ahmad. On careful consideration he is found to be not a suitable person to be the surety. His suret bond stands cancelled. The petitioner Mst. Sara Sultana shall not be arrested if a surety bond of some other respectable citizen is furnished in the sum of Rs .50, to the satisfaction of any Magistrate First Class, Muzaffarabad. The petition stands disposed of accordingly. N.H.Q./115/Sh.CA. Order accordingly.