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Criminal Miscellaneous No. 246/M of 1983 in Criminal Miscellaneous No. 2141M of 1983, decided on 27th April, 1983.

-----Ss. 497 & 561-A-Bail application, transfer of-Prayer for transfer of bail application to High Court-Sessions Court having complete jurisdiction to decide bail matter pending before it-Held, High Court cannot interfere under S. 561-A, Cr. P. C.

---- Ss. 497 & 561-A - Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11-High Court cannot give direction under S. 561-A, Cr. P. C. to Subordinate Court to deliver custody of woman (accused) to particular person after allowing her bail-Consideration as to who should be surety of accused-woman, married or unmarried allegedly going wrong and facing trial, within competency of Court allowing bail---Propriety of surety.

In propriety, it should be husband of accused woman, her parents, her relations as the case may be but certainly not her paramour who would him self be an accused, associates of her paramour or such strangers to her who may lead her astray and even exploit their position as surety by putting her in fear that they would get their bail bonds cancelled in case she did not act according to their evil designs. Safeguards against such eventualities are a must for a moral society. Respectable persons of the locality who are held in high esteem by the people of that area may also stand surety if they are so willing. She has filed a suit for the dissolution of her marriage against her husband, her father was the appropriate person to stand surety.

----Ss. 497 & 561-A and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11-Bail-Accused -Woman granted bail and her father allowed to stand surety as woman has filed suit for dissolution of marriage against her husband-Accused woman applying under S. 561-A praying that she apprehends danger to her life from her father and that condition of her father being her surety placed be quashed and be allowed to be released on surety of some independent person-Held, her close relations including her grand-father, grand-mother, maternal uncle or brothers, but not as sociates of her c.-accused, can be surety-Accepted surety will have no right to claim custody of accused woman under circumstances.

-- S. 497-Bail-Accused girl allowed bail not to be sent to Darul Aman at cost of her liberty, allowed by bail-Sending accused girl to Darul Aman, held, amounts to put her again in custody of Authorities incharge of Darul Aman.

Rana Ijaz Ahmad for Petitioner.

Barakullah for Respondents.

Tanvir Ahmad Khan, A. A.-G. for the State.

Mst. Kalsoom is accused of the offences under section 10/11, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 She applied for bail before the trial Court. During the pendency of her petition, her husband Rehmat Ali made an application under section 561-A, Cr. P. C. praying for the transfer of that petition on the file of this Court and in the alternative for the issuing directions to the effect that in case bail is allowed, her custody be given to her husband or to her parents. On 3rd April, 1983, this petition was disposed of on the ground that the Additional Sessions Judge had the complete jurisdiction to decide the bail matte pending before him. This Court, therefore, cannot interfere under section 561-A, Cr. P. C. As to the second submission, it was observed that in its inherent powers, this Court cannot give such a direction to the Courts below to deliver the custody of a woman accused to a particular person after allowing bail to her. While dismissing that petition, it was however, observed that keeping in view the entire concept of the Hudood Law, it will be within the competence of the Court while allowing bail to consider as to who should be the surety of a woman-accused married or unmarried who had allegedly gone wrong and was facing a trial In pro priety, it should be her husband, her parents, her relations as the case may be, but certainly not her paramour who would himself be an accused associ ates of her paramour or such strangers to her who may lead her astray and even exploit their position as surety by putting her in fear that they would get their bail bonds cancelled in case she did not act according to their evil designs. Safeguards against such eventualities are a must for a moral society. It may however, be added that respectable persons of the locality who are held in high esteem by the people of that area may also stand surety if they are so willing.

In this case Mst. Kalsoom accused's father has been allowed to stand surety for her. As she has filed a suit for the dissolution of her marriage against her husband, therefore, her father was the appropriate person to stand surety. She has come up under section 561-A, Cr. P. C. praying that she apprehends danger to her life from her father, therefore, the condition placed by the learned Additional Sessions Judge that her father should b her surety be quashed and she be allowed to be released on the surety of some independent person. During the course of arguments, I enquire from her counsel as to whom she would like to be her surety. At first the counsel stated she would like to be lodged in the Darul Aaman, later the learned counsel mentioned the name of an old man of 80 years who was a resident of a distant place and not even connected with her. I see no reason as to why she should be sent to the Darul Aaman at the cost of her liberty which she has been allowed by the bail order. Sending her to Darul to my mind, will amount to put her again in the custody of Aaman who are incharge of Darul Aman. This Court cannot make such an order. However, the real question for determination is as to who should be her surety. She has refused to accept her father as her surety. Mr. Barakullah, Advocate, has contended that her grand parents, maternal uncle and even the Chairman of the locality would be willing to stand surety for her. Exercising revisional jurisdiction, I modify the trial Court's order to the extent that any one of her close relations including her grand father, grand-mother, maternal uncle or brothers may be her surety in this case but not the associates of her co-accused. It may however, also be made clear in this order that the accepted surety in this case will have no right to claim her custody because he is only her surety in this case.

Order accordingly.

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