P L D 1983 Peshawar 228 (PLP)

This is an application for the grant of bail to Mst. Gulmarjana daughter of Nizam Din, wife of Azad Khan, resident of Serai Hafiz Sahib, outside Lakki Gate, Bannu. The petitioner stands charged under sections 5, 9, 16 of Zina Hudood Ordinance, 1979, vide F. I. R. No. 481 dated 6‑8‑1982, P. S. Bannu City.

2. The petitioner after her arrest applied for bail to the Ilaqa Magistrate but her application was rejected vide order dated 10‑8‑1982. She then moved the Court of Session but there too she did not succeed and her application met the same fate, vide order of the Additional Sessions Judge, Lakki at Bannu. However, co‑accused of the petitioner Mst. Minu was released on bail by this Court on 17‑11‑1982. 3. 'The petitioner in the second round of bail application applied to the A. C./S. D. M., Bannu, on the ground that she had validly entered into "Nikah" with her co‑accused, Azad Khan on 30‑4‑1982, who was her husband, but this application was, also dismissed vide order dated 15‑1‑1983. Thereafter again, she approached the learned Sessions Judge with the same request but he too declined her bail vide order dated 15‑2‑1983.

4. Learned) counsel for the petitioner contended that the two Courts below have erred in not considering the plea taken by the petitioner for bail purposes and unduly stretched the case in prosecution's favour, which against the precedent of the superior Courts, that the petitioner is behind the bars since 6‑8‑1982 and the investigation in the case is complete, as such, she is no more required by the police ; and that in any case the superior Courts have always granted the concession of bail to female accused on ground of sex alone. In support of his arguments, the learned counsel cited the following authorities Boota and another v. The State (1970 S C M R 762) wherein it was observed as under :‑ "Section 497 (1)‑Bail never sought in Courts below on ground of accused 1 being a woman‑Accused, held, could move lower Courts for bail on ground of her sex if so advised‑Petition for leave to Appeal dismissed by Supreme Court." Next case cited is reported in Naziran v. The State (P L J 1975 Cr. C (Lah.) 430) which lays down as under :‑ "Criminal Procedure Code V of 1898, S. 498‑Petitioner, along with her brother charged under section 302/34, P. P. C:‑Allegation against petitioner being that she gave hatchet to her brother and with that hatchet he attacked her husband and murdered him‑‑Held, petitioner being a woman is entitled to bail for her case is covered by proviso to section 497 (1)." The last case which ha referred‑is Shahnaz Iqbal Adil and another State (1982 P Cr. L J 1231), wherein the observation made runs as follow :‑ "Sections 498 and 497 (1), proviso‑Pre‑arrest bail‑petitioner (woman) charged for marrying another person during existence of first marriage‑?Petitioner disputing her Nikah and denying her signatures on Nikah?nama‑Suit for jactitation of marriage already filed‑Matter, held, needs further inquiry‑Petitioner being female her case falling within purview of proviso to subsection (1) of section 497, Cr. P. C. interim bail confirmed in circumstances."

5. Learned counsel for the State also heard arid record perused. In this case, the petitioner is behind the bars since 6‑8‑1982. She is a woman and h also produced a Nikah Nama which shows that she has married her co‑accused Azad Khan. As such, without touching the merits of the case and in respectful agreement with the authorities cited by the learned counsel for the petitioner, I hold that the petitioner is entitled to the concession of bail: I, therefore, accept this petition and order that the petitioner be released on bail provide she furnishes surety bonds in the sum of Rs. 20,000 with two sureties for the like amount each, to the satisfaction of the Illaqa/Duty Magistrate. M.Y.H.??????????????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.