1995SCMR150 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑This appeal through leave of the Court is directed against an order of the High Court; whereby an application for cancellation of bail in an offence under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 494, P.P.C. was dismissed. The leave grant order reads as follows:‑ "In this petition for leave to appeal in a case of cancellation of bail the learned counsel relying on some of the judgments of this Court, contended that the female accused/respondent having been accused of Zina, should not have been released on the furnishing of the bail bonds by any person who would permit her to live with the same person regarding whom the allegation of Zina has been made. According to learned counsel, if the defence plea of valid Nikah ultimately fails, the grant of bail and the living together on account of this bail by the two persons concerned would result in an odd situation. Reliance has been placed on Mst. Zahida Khatoon v. The State (1984 SCMR 687). Points raised in this petition require examination. This petition is converted into appeal. To come up for final hearing and disposal on 13th July, 1991. The female accused as well as her alleged husband together with those who have already furnished bail and those who want to furnish bail as also the father of the female accused shall appear in person. The office shall take strict security measures to avoid any incident as sometime happens in cases like the present one. Learned counsel for the petitioner is directed to persuade his client to enter into a meaningful discussion out of Court to resolve the controversy involved; namely, who should furnish the bail bonds for the release of the accused lady." At the time of hearing which was attended by elders and respectables from both sides various suggestions made by both the learned counsel so as to ensure that the lady/accused is not subjected to unnecessary hardship or be not subjected to any danger to her life at the hands of persons, who might offer surety bonds get her released and take her alongwith them; even if they are her kith and kin and their well wishers. At the same time they tried to ensure that in case ultimately this case ends into conviction after the trial (in the event the accused are challaned) the Court may not then be subjected to any criticism in matter of allowing bail to the lady in such a manner that she during this time 'lived with the person, she is accused of having committed Zina with and that too under the orders of the Court. Sufficient comment in this behalf has been made in some of the reported cases including the one noticed in the leave grant order. Ultimately both the learned counsel on instructions received from their clients agreed to the common course of action on the basis of which a short Order was passed and announced at the conclusion of the hearing which reads as follows:‑ "For the reasons to be recorded later this appeal is disposed of as under: Both the sides agree that Mst. Zohra Bibi respondent No. 2 shall be lodged in Darul‑Aman, Abbottabad. We think that it is fair to keep her in Darul Aman for no longer a period as is necessary. However, we direct, in order to do complete justice, that the investigation shall be completed within one month and in any case at least, an interim report under section 173, Cr.P.C. shall be submitted at the end of one month. The other questions, if any, shall be brought to the notice of the High Court and shall be controlled by it. Mst. Zohra Bibi respondent No. 2 shall be sent to Darul‑Aman in police protective custody in accordance with the rules. In this context the impugned order is modified." With the foregoing order this appeal now stands disposed of. N.H.Q./M‑2063/S Order accordingly.