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Criminal Revision No.596 6f 1985, decided on 16th November, 1985.

‑‑‑Ss.497 & 439‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 11‑‑Bail‑‑Conditional order‑‑Attestation of bail bond‑‑Accused allowed bail subject to condition of verification or attestation of bail bonds by father, mother or any brother of accused‑ Father of accused found to be complainant of case and mother and brother found to be witnesses against accused‑‑Sister of accused, under whose protection she was living, stating that allegation against accused was false‑‑First informant and witnesses who had allegedly levelled false allegation against accused were expected to stand sureties in bail bonds of accused which course, held, was not envisaged and would lead to injustice‑‑Condition attached with bail order having been found to be illegal, set aside in circumstances.

Mst. Pathani and another v. Murtaza and 2 others P L D 1985 Lah. 512 and Mst. Zahida Khatoon v. The State 1984 S C M R 687 distinguished.

Mian Muhammad Hanif Tahir for Petitioner.

Aziz Qureshi for the State.

This is a criminal revision directed against the order passed by the Sessions Judge, T.T. Singh on 4‑11‑1985 in which he, while allowing bail to the petitioner, ordered that the petitioner shall be released if the bail bonds are verified or attested either by father, mother or any brother of the petitioner. Learned counsel for the petitioner states that in fact father is the complainant and the first informant in this case as against the petitioner and, therefore, he could possibly not verify or attest the bail bonds in the peculiar facts and circumstances of this case. Similarly, mother or brother in this case are stated to be the witnesses as against the petitioner and they also would not verify or attest the bail bonds.

2. The background is that a case is registered against the petitioner under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as under section 380/411/452, P.P.C. at Police Station Chatiana, District T.T.Singh at the instance of the father of the petitioner. The allegation against her is that she had been committing Zina with her own brother‑in‑law, i.e., husband of her sister. The petitioner appeared before ‑me and stated that the correct position is that she was under the protection of her sister, namely, Mst. Akbar Zamir, with whom she was staying. Her sister Mst. Akbar Zamir also appeared before me in another application and she is also present today, and she stated that the allegation against the petitioner by the father is absolutely false and that she was living with her under her protection and that there was no such affair with her husband and the petitioner. The case of the petitioner is that the father and the brother had received money from the person to whom they married the petitioner, namely, Ashiq Hussain alias Ilyas. He maltreated the petitioner and the petitioner wanted to get divorce from him and, therefore, is now residing with her sister at Chak No.133/16‑L Mian Channu, District Khanewal. Since the father of the petitioner as well as her brother want that she should go back to her husband they have filed this false case against her. Learned counsel for the State has relied upon Mst. Pathani and another v. Murtaza and 2 others P L D 1985 Lah. 512 to show that in an offence of Zina if bail is granted to female accused subject to the condition that she shall be released on bail on a bail bond submitted by her father/mother, it was held that the order specifying particular person to stand surety on behalf of female accused did not in any way impose a condition on bail order and, therefore, was not illegal. In this connection numerous cases were mentioned and also of the Supreme Court, i.e., Mat. Zahida Khatoon v. The State 1984 S C M R 687. I have considered these authorities but in my view the facts of the present case are distinguishable. It is not a case in which the father or mother or the brother of the female accused are to stand sureties in, the bail bonds but it is a case in which the first informant and the witnesses who have allegedly levelled false allegation against the petitioner are expected to stand sureties in the bail bonds of the petitioner which course is not envisaged and would lead to injustice. As I have pointed out the sister of the petitioner under whose protection she is living at present herself come forward and stated that the allegation is false. In that view of the matter this is a case in which an illegal condition is being imposed, wrongly applying the principle laid down in the above judgments, by the Sessions Court while granting bail to the petitioner. Consequently the present revision petition is accepted and the condition imposed by the Sessions Judge, T.T. Singh in his order, dated 4‑11‑1985 to the effect that the petitioner be released if the bail bonds are verified or attested either by the father, mother or any brother of the petitioner is hereby set aside. With these observations this petition is disposed of.

H.A.K. Revision accepted.

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