1991PCr (PLP)

Ss. 561-A & 497

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10

Charge against four women co-accused in the case was similar and ocular evidence was also the same, but they had not applied for bail and were still in jail

High Court in exercise of inherent powers under S.561-A, Cr.P.C. read with 5.497, Cr.P.C. also released such women co-accused on bail. Sahibzada Farooq Ali Khan and Sh. Muhammad Farooq for Petitioners. Tasaddaq Hussain Jillani, Addl. A.-G. and Nafees Ahmad Ansari, AA: G. for the State. This is an application for grant of bail to Sajjad, Sikandar, Asif alias Asim and Abdullah Ances petitioners in case under section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 registered at P.S. Khangarh vide F.I.R. No. 98, dated 22-6-1990. 2: The prosecution case is that the four petitioners were seen committing Zina with four women namely, Mst. Ruqia Tabassam, Mst. Fauzia, Mst. Tanveer and Mst. Mumtaz on 22-6-1990 at 9-00 p.m. by Muhammad Iqbal complainant, Muhammad Ashfaq and Hasnain Mi. On seeing them committing Zina, Iqbal Ahmad approached the police party headed by Naeem-ul-Hassan Khan, S.I./S.H.O. who were on patrol duty near Noori Eidgah at 9-30 p.m. On this, the S.H.O. and constables, raided the Dera of Haji Hassan Khan situate in Mauza Sadey Waan and apprehended the accused on the spot.

3. Learned counsel for the petitioners submitted that the petitioners have falsely been involved in the case; that the F.I.R. was registered after their arrest by the police; that the two eye-witnesses mentioned in the F.I.R. and Muhammad Iqbal complainant as well, have exonerated the petitioners from the commission of the crime, in their statements recorded under section 164, Cr.P.C. by a Magistrate (copies whereof are on the file of this case). The learned AA.-G. has opposed this application.

4. Muhammad Iqbal, Muhammad Ashfaq and Hasnain, the three eye-witnesses are present in the Court. Naeem-ul-Hassan Khan, SHO identifies them. They own their statements recorded under section 164, Cr.P.C. They have categorically stated in this Court in the presence of Naeem-ul-Hassan Khan, SHO that they had not seen the petitioners committing Zina and had simply seen them and their co-accused present in the Dera of Haji Hassan Khan wherefrom they were arrested by the police. Naeem-ul-Hassan Khan, S.H.O. states that at the time of raid, he had not seen the petitioners committing Zina with the four women named in the F.I.R. although he had arrested the petitioners and co-accused from the Dera of Haji Hassan Khan. He further states that except the statements of the three eye-witnesses namely, Muhammad Iqbal, Muhammad Ashraf and Husnain, there is no other evidence against the petitioners and the ladies co-accused.

5. I have considered the submissions made by the learned. counsel for the parties with care. I find that according to F.I.R. three persons Muhammad Iqbal, Husnain Ahmad and Muhammad Ashfaq had seen the petitioners committing Zina with the co-accused women. Before this Court, the eye-witnesses have categorically refused to support the allegations against the petitioners. They not only exonerated the petitioners from the commission of the offence of Zina, in their statements before the Magistrate but have. also owned their statements recorded under section 164, Cr.P.C. before this Court. They are not prepared to support the charge of Zina against the petitioners. The S.H.O. has frankly stated that at the time of raid, he had not seen the petitioners committing Zina with the co-accused women and that the eye-witnesses having gone hostile, there is no other evidence against the petitioners. In this view of the matter, there is no option but to allow this application. So the petitioners will be released on furnishing bail bonds in the sum of Rs.20,000 with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Muzaffargarh.

6. At this stage, it has come to my notice that the four co-accused namely Mst. Ruqia Tabassam, Mst. Fauzia, Mst. Tanveer and Mst. Mumtaz against whom the allegations are identical and the ocular evidence is common, are still in the jail and have not even applied for bail before the learned Sessions Judge as they being poor ladies, are not in a position to pursue their case. I feel that it would be highly unjust that the male accused are released on bail but the female accused remain in the jail. The Addl. A.-G. is hereby called upon to show as to why the four women co-accused should not, be released on bail although they have not applied for it.

7. After hearing the learned Addl. A: G. I feel that it would be in the fitness of things and in consonance with the rule of justice and rule of consistency that female accused against whom not only the charge is similar but the ocular evidence is also the same, should be released on bail and the concession of bail should not be withheld similarly because they are not in a position to pursue their case or they have not filed any application for bail. Nothing in the Code of Criminal Procedure shall be deemed to limit, or affect the inherent powers of this Court to make such orders as maybe necessary to secure the ends of justice or to do complete justice. So if daring the course of the hearing of bail plea of one accused, this Court finds that another co-accused of the case equally entitled to the concession of bail, is detained in the jail, it can release him on bail although he has not applied for the same. So in exercise of inherent powers under section 561-A, Cr.P.C. read with section 497 Cr P.C., I direct that the four women co-?accused namely Mst. Mumtaz, Mst. Ruqia Tabassam, Mst. Fauzia and Mst. Tanveer shall also be released on furnishing bail bond in the sum of Rs.20,000 with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Muzaffargarh. Copy of this order shall immediately be sent to Superintendent, New Central Jail, Multan who will convey the order of this Court to the women co?-accused. N.H.Q.781/S-L?????????? Bail allowed.