1996SCMR522 (PLP)

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Complainant had challenged the release of the two accused on bail as well as the adverse remarks passed by High Court against him‑‑‑Except the statement of female accused recorded under S. 161, Cr.P.C. no other evidence was available to connect the accused persons with the offence‑‑‑Female accused had also alleged in her statement recorded under S. 164, Cr.P.C. that the complainant had sexual intercourse with her prior to Rukhsati‑‑‑Leave to appeal was refused in circumstances‑‑‑Adverse remarks passed by High Court against the complainant could prejudice his case, same, therefore, were deleted from the order. Raja Shiraz Hussain Kayani, Advocate Supreme Court with Anwar H. Mir, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 8th August, 1994. MIR HAZAR KHAN KHOSO, J.‑‑‑This petition for leave to appeal is directed against the order dated 18‑5‑1994 passed by the Single Judge of Peshawar High Court, Bench Abbottabad, whereby respondents Muhammad Firdous and Mst: Farzana Bibi were released on bail and certain adverse remarks were also passed against the petitioner.

2. It is case of the petitioner that the he got married with Mst. Farzana Bibi. Nikah, and Rukhsati took place on 22‑10‑1993. However, while performing conjugal rights he found his wife to have distended stomach. He thus suspected that she was already pregnant. Respondent Mst. Farzana Bibi pretended that the swelling was due to stomach trouble. However, on her examination by a doctor she was found to be pregnant. The petitioner, therefore, moved an application before the Ilaqa Magistrate apprising him of her illegitimate pregnancy. The learned Magistrate sent the application to S.H.O., Police Station, Abbottabad Cantonment for necessary action. The S.H.O. registered a case against Mst. Farzana Bibi. In her statement recorded under section 161, Cr.P.C. she disclosed that respondent Muhammad Firdous had committed illicit intercourse with her. Applications for her release on bail and that of Muhammad Fardous were rejected by the Ilaqa Magistrate as well as by the learned Sessions Judge, Abbottabad. On her own request her statement tinder section 164, Cr.P.C. was recorded by a Magistrate. Ultimately she moved application for bail before the High Court. Her statement under section 164, Cr.P.C. was again recorded by the Magistrate on the direction of the High Court. However, on the basis of her 164, Cr.P.C. statement she and her co‑accused Muhammad Firdous were released on bail by the High Court on 18‑5‑1994 by two different orders. While disposing of Criminal Miscellaneous No. 124 of 1994 the learned High Court had passed certain adverse remarks against the petitioner: The petitioner has sought for leave challenging the release of the two respondents on bail as well as the adverse remarks.

3. We have heard Raja Shiraz Hussain Kayani, Advocate Supreme Court with Mr. Anwar H. Mir, Advocate‑on Record, for the petitioner.

4. The learned counsel for the petitioner admitted that except 161 Cr.P.C. statement of Mst. Farzana Bibi there is no other evidence to connect the two respondents with the offence. In her 164, Cr.P.C. statement respondent Mst. A Farzana Bibi had alleged that the petitioner had sexual intercourse with her prior to Rukhsati. In such view of the fact we are not inclined to grant leave. However, the adverse remarks passed against the petitioner will certainly prejudice the case of the petitioner, which would be, indeed, unfair affair. We are, therefore, inclined to delete the adverse remarks from the order. Leave to appeal is declined. The‑petition stands dismissed. N.H.Q./A‑1249/S Leave refused.