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Criminal Miscellaneous No. 2359/13 of 1983, decided on 11th October, 1983.

- S. 497-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 8, 10 (3) & 16-Bail-Allegation of Zina arising merely in form of presumption-Neither four or less than four eye-witnesses of commission of offence nor confessional statement made by accused before competent Court-Whether or not ingredients of offence are present, job of trial Court to go into matter-Petitioner allowed bail in circumstances.

Ch. Muhammad Hussain for Petitioner.

Shahnawaz Khan for the State.

Date of hearing: 11th October, 1983.

In continuation of my order dated 25th September, 1983 learned counsel for the State has argued that the co-accused Muhammad Mansha was medically potent as he was- medically examined. He further states that in her statement under section 161, Cr. P. C., made before the police the petitioner accepted that she had illicit relations with Muhammad Mansha co-accused and had joined him with her own accord and was residing with him without any compulsion. In that view of the matter, it is submitted that no case was made out for the grant of bail to the petitioner. On the other hand, learned counsel for the petitioner stated that the, petitioner had left the house of her husband because she had strained relations with her husband i.e. the complainant in the instant case, and that, therefore, after having left his house she instituted a suit for dissolution of marriage on 7th March, 1983 i.e. five months thereafter. Learned counsel also submitted that for establishing the offence of Zina the requirements of law are laid down in section 8 of the Hudood Ordi nance and in the instant case the requirements of section 8 of the said Ordinance are not available. According to learned counsel there is no confessional statement of the petitioner made before a competent Court to the effect that she had committed Zina with the co-accused. Further more, there are neither four eye-witnesses of the offence of Zina having been committed by the petitioner to bring her case prima facie within Hudood, nor there are less than four eye-witnesses to bring hex -case within the Tazeer. It is submitted by learned counsel that no other mode of evidence is stated in the section concerned and consequently would be permissible under law for admission. In that view of the matter, he states that a case was made out for the grant of bail to the petitioner. I agree with learned counsel. The allegation of Zina arises merely in the form of presumption in the instant case, for, raising the allegation of Zina there should prima facie be either four or less than four 'eye-witnesses of the commission of offence or a confessional statement should be made by the accused before a competent Court. If these ingredients are lacking, the offence could not be established. He further argued that in any case as to whether or not the ingredients are present in the instant case, it is a the job of the trial Court to go into the matter but for the time being the case of the petitioner requires further inquiry. Since this is the position, I admit the petitioner to bail subject to her furnishing security in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of A. C., Okara. This petition is disposed of.

M. A. K Bail allowed.

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