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Criminal Miscellaneous No. 1246/B of 1983,

‑‑ S. 10‑Criminal Procedure Code (V of 1898), S. 498‑Zina Bail‑Prosecution case that accused after having room in hotel, and in quick succession, committing Zina with his own sister's daughter and his cousin in presence of each other and daughter of his brother aged 10 ‑ Unthinkable and impossible‑Offence taking place at I1 a. m. but matter reported to police at 3 p. m., police station being just at 10 yards from the place of occurrence ‑ No explanation of delay forthcoming ‑ Register of Hotel taken in possession after 1i months of occurrence ‑ Case against accused being of further enquiry in circumstances‑Bail granted.

‑‑ S. 10‑Zina‑Not unusual in case of married woman, that vaginal swab are stained with semen‑Medical opinion in case of married woman that she is used to sexual intercourse, not of much import ance.

Abdul Aziz Qureshi for Petitioner.

Sardar Nazar Hussain Dogar for the State.

This is a petition for bail submitted by Shabbir alias Muhammad Boota petitioner who is involved in a case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 arising out of F. I. R. No. 48, dated 31st March, 1983 of Police Station City Wazirabad.

2. The allegations against the petitioner are that on 31st March, 1983, the petitioner booked a room in Sangham Hotel Wazirabad and stayed in that room with two women, namely, .Mst. Kalsoom Bibi and Mst. Salmon Bibi who were accompanied by a child Mumtaz aged 10 years and a suckling child of Mst. Salmon Bibi. It is further alleged that at about 11 a. m. on the same day, the petitioner first committed Zina' with Mst. Kalsoom Bibi and soon thereafter he committed Zina with Mst. Salman Bibi. He was seen committing Zina' with the aforementioned women by Sardar Khan, the first informant, Ayyaz Meer, Munir Ahmad Head Constable and Shabbir Ahmad Constable.

3. It is contended on behalf of the petitioner that Mst. Salmon Bibi is the real sister's daughter of the petitioner while Mumtaz Bibi. the 10 years old girl, is the real brother's daughter of the petitioner. The other woman Mst. Kalsoom Bibi is the cousin of the petitioner being the daughter of his mother's sister. It is further contended that the peti tioner and the aforementioned ladies and children had come to Wazirabad for shopping in connection with a marriage in the family. They went to Sangham Hotel to take meals. They took meals iii the verandah of the Hotel where other customers were also taking meals. They did not book any room in the Hotel. A constable of City Police Wazirabad came there. He made indecent gestures to the ladies accompanying the petitioner where upon the petitioner admonished and remonstrated the constable who felt insulted and with the connivance of his colleagues and a police tout Sardar Khan, the first informant, fabricated a false case of ‑Zinc' against the peti tioner and the ladies accompanying him.

4. Sardar Khan, according to the contents of the first information report, is a cobbler, while the other witness namely, Ayyaz Meer is Tanoorwala'. It has not been denied on behalf of the State that Mst. Salman Bibi and Mumtaz Bibi are related to the petitioner within the prohibited degree being his sister's daughter and brother's daughter respectively. It is unthinkable that the petitioner would subject his own sister's daughter to Zina' or would subject another woman who is related to him as cousin to 'Zina' in the presence of a sister's daughter. The offence allegedly took place at 11 a. m. and the matter has been reported to the S. H. O. at 3 p. m. at a distance of only 10 yards from the alleged place of occurrence. There is no explanation for this delay. The allega tion that the petitioner and his accompanying ladies booked a room in the Sangham Hotel at Wazirabad on the day of occurrence is sought to be supported by an entry in the Hotel register which purports to have been taken into possession by the police on 14th May, 1983 i. e. 11 months after the alleged occurrence'. It also does not sound the reasons that petitioner was so sexually strong that soon after committing sexual inter course with Mst. Kalsoom Bibi, he would be able to commit sexual inter course with Mst. Salmon Bibi in quick succession of the earlier coital ac with Mst. Kalsoom Bibi. It is also not believable that in the presence of Mst. Salmon Bibi, the petitioner would have sexual intercourse with Mst. Kalsoom Bibi and similarly in the presence of the latter would subject the former to sexual intercourse.

5. The learned counsel for the State has urged that the petitioner has been named as an offender in the first information report and that the results of viginal swabs of Mst. Kalsoom Bibi and Mst. Salman Bibi and about the stains of semen on the 'Shalwars' of the petitioner and the two women being in positive, the petitioner who is involved in an offence which falls within the prohibitory clause, does not deserve to be released on bail. As regards vaginal swabs it may be observed that both Mst. Kalsoom Bibi and Mst. Salman Bibi are admittedly married women. Mst. Salman Bibi has children as well. In case of married woman, it is not unusual that the viginal swabs are stained with semen. Stains on 'Shalwars' n of the petitioner and the two women are not of much consequence as such 'Shalwars' might have been planted subsequently. The opinion of the Lady Doctor, as a result of medico‑legal examination of Mst. Kalsoom Bibi and Mst. Salman Bibi, is to the effect that both the women were used to sexual intercourse. She has not opined in clear terms that they were subjected to sexual intercourse on 31st March, 1983. The opinion that a woman is used to sexual intercourse is not of much importance in case of a married woman.

6. In the above circumstances, it is concluded that the case against the petitioner is of further enquiry and he is, therefore, admitted to bail in the sum of Rs. 25,000 (Twenty‑five thousand) with one surety in the like amount to the satisfaction of A. C. Wazirabad.

M. Z. M. Bail granted.

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