2003 P Cr (PLP)

Fazlur Rehman Awan for the State. Applicant Mst. Nadra Shireen alias Robina is an accused in Crime No.143 of 2000 of Police Station Aziz Bhatti, Karachi (East) initially registered under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 380/34, P.P.C., but subsequently converted under sections 10(2)/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. This case was registered on 7‑7‑2000 at the instance of complainant Tariq Javed who was husband of the applicant at that time but the marriage between the parties has been dissolved subsequently on 18‑1‑2001 by the learned IX Civil and Family Judge, Karachi (Central) in Family Suit No.808 of 2000. The complainant stated in his F.I.R. that he was married to accused Mst. Nadra‑Shireen alias Robina in the year 1991 and both of them used to reside in a flat in Ashraf Square, Gulshan‑e‑Iqbal, Karachi. He further alleged that the persons namely Arif, Mst Nusrat and Mst. Moona used to visit accused Mst. Nadra Shireen alias Robina for the purpose of learning spiritualism as lady accused is a Hafiza of Qur'an and used to give Taweez to the needy persons. On 12‑6‑2000 there was exchange of harsh words between the complainant and his wife during the morning time whereafter the complainant went to his office as he is an employee of Sindh Government. At about 19‑30 hours in the evening when he came back to his house he found that the lady accused was not present in the house. It has been alleged in the F.LR. that the said Arif in order to commit Zina has enticed away Mst, Nadra Shireen alias Pobina with the help of Mst. Nusrat and Mst. Moona. The complainant further stated that his household articles were also removed/taken away by the said accused. It appears that during the investigation the applicant was let off by the police under section 169, Cr.P.C. as the case was found to be false. However, the complainant appears to have approached the Inspector‑General of Police, Sindh who transferred the case to the Crime Branch for re‑investigation. Applicant who was released earlier was again arrested and the case was sent‑up for trial while applying sections 10(2) and 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. An application for bail was filed before the learned Vth Additional Sessions Judge, Karachi (East) which has been rejected on 27‑2‑2002, hence this application. Mr. Kh. Naveed Ahmed learned counsel for the applicant has argued that the applicant is a respectable lady and Hafiza of Qur'an. False allegations were made by the complainant in view of the dispute between the husband and wife which resulted in dissolution of marriage through the Court. He has further contended that as a result of the first investigation, the applicant was found innocent and she was let off under section 169, Cr.P.C. as the case was found to be false. He has further argued that complainant being well‑placed in the Government service has used his influence and managed a false medico‑legal report/certificate from one lady doctor. The said certificate on the face of it appears to be managed one and does not inspire confidence particularly when the age of the lady accused is about 50 years and she has remained married for about 9 years. The opinion of lady doctor/Woman Medico‑Legal Officer of Civil Hospital, Karachi, showing "Vestibule slightly congested small lacerations present at posterior aspect of vestibule which was in healing state" appears to be most unnatural and cannot be given any weight, more particularly when the allegation appears to be that the lady accused was a consenting party to the alleged offence of Zina and when the report of Chemical Analyser also shows that semen was not detected in the article/vaginal slide sent to the Chemical Laboratory for detection of semen. It has been further argued by the learned counsel for the applicant that the said lady doctor in order to extend undue favour to the complainant has gone to such extent that in order to justify the act of sexual intercourse having been committed and to nullify the effect of Chemical Analyser's report showing absence of semen, she has sent a further opinion to 'the Investigating Officer to the effect that non availability of semen may be the result of use of condom, ejaculation outside, faulty swab, faulty slide and technical errors at the Chemical Lab or coitus interruption etc. The learned counsel has, therefore, argued that it is a fit case which stands covered under section 497(1) as well as under section 497(2), Cr.P.C. Mr. Fazlur Rehman learned State Counsel after going through the police papers has raised no objection to the grant of bail in view of the contentions raised by the learned counsel for the applicant and the material available with him. I have given due consideration to the arguments of the learned counsel for the applicant and the no objection recorded by the learned State Counsel. I am also of the considered view that it is a fit case for grant of bail firstly, for the reason that there is inordinate delay in lodging of the F.I.R. as the lady accused was allegedly enticed away on 12‑6‑2000 whereas report was lodged on 7‑7‑2000 without any plausible explanation. Secondly, the applicant was found innocent during the first investigation carried out by the police and she was let off under section 169, Cr.P.C. as the case was found to be false. Thirdly, there is no ocular evidence in respect of the commission of the offence of Zina. Fourthly, a perusal of Medical Certificate issued by the said Woman Medical Officer shows that she appears to be over ambitious to support the case of the prosecution for the reason best known to her. Availability of lacerations on the posterior aspect of the vestibule of a grown‑up and already married lady allegedly a consenting party to Zina, itself calls for further enquiry. Lastly, there is also force in the contention that in view of the strained relations between the lady accused and complainant which resulted in dissolution of marriage through Family Court, the case also stands covered under subsection (1) as well as (2) to section 497, Cr.P.C. Bail was granted to the applicant in the sum of Rs.1,00,000 (Rupees one hundred thousand only) and P.R. Bond in the like amount to he satisfaction of the learned trial Court by a short order, dated 3‑7‑2002 announced after conclusion of the arguments and these are the reasons for the same. N.H.Q./N‑102/K Bail allowed.