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Criminal Miscellaneous No. 144 of 1985, decided on 7th December, 1985.

‑‑ S. 497 ‑ Offence of Zina (Enforcement of 13udood) Ordinance (VII of 1979), Ss. 5, 10, 11 & 16 ‑ Penal Code (XLV of 1860), S. 452/506‑Bail‑Accused charged for committing Zina with a married woman and medical opinion confirming commission of Zina ,upon her, but possibility that just to entangle accused with commission of crime, husband of lady cohabited to procure support to prosecution case, could not be excluded altogether‑Fact that when lady was allegedly forcibly being subjected to Zina by accused and during process brother of husband of lady also arrived there but he did not make any attempt to rescue lady from further dishonour and on other hand just chain ed door from outside leaving culprit and prosecutrix in same room, making case arguable for purpose of bail‑ Further fact, that husband of prosecutrix when informed about Zina being committed with his wife, instead of coming to spot, without confirming allegation, went to police station for lodging. report, also making case of accused quite arguable for purpose of bail‑‑Bail allowed in circumstances.

S. Zafar Abbas Zaidi for Petitioner.

H. Saadullah Khan Miankhel, Asstt. A.‑G. for the State.

Date of hearing : 7th December, 1985.

Through the instant criminal miscellaneous petition Sher Dil has applied for his release on bail in a case under section 5/10/11/16 of Hudood (Zina) Ordinance, 1979, and section 452/50x6 P. P. C. The accused‑petitioner had earlier applied for his release on bail to the Court of the Illaqa Magistrate which was granted by his order dated 26‑5‑1985, but it was subsequently cancelled by the learned Sessions Judge per his order dated 4‑8‑1965.

2. Arguments of the learned counsel for the petitioner and the learned Assistant Advocate‑General on behalf of the State respondent have been heard and record of the case has been examined.

3. In the F. I. R. Bahadur Khan complainant reported that he was present in the threshing floor when at about 'Pasheen' time his brother Dilawar went there and informed him that he was present in his house when he heard noise in the house of the complainant. Dilawar accordingly went to that house where he saw Sher Dil petitioner accused committing Zina with his wife. Dilawar accordingly chained the door where Zina was being committed from outside and deputed Painda Khan and Ali Khan to guard the room. On this information Bahadur Khan went to the Police Station and reported the matter. When the Police arrived at the spot, however, there was no body in the Kotha'. It is still to be probed as to how Sher Dil and Mst. Gul Bibi wife of the complainant slipped away from the room particularly when the said room was being guarded by Painda Khan and Ali Khan. Besides it is also to be seen at the trial as to why the site plan was prepared on the second day of the occurrence i.e. 6‑5‑19,85. Undoubtedly the lady was examined by the Medical Officer who confirmed the allegation of Zina having been committed with Mst. Gul Bibi but this evidence cannot by itself be a circumstance for hold ing the accused guilty because she was a married woman and possibility at this stage cannot be altogether excluded that just to entangle the accus ed‑petitioner with the commission of the crime the husband of the lady co‑habited to procure support to the prosecution version. It is also to be noticed that despite the fact that the lady 'was forcibly being sub jected to Zina by the accused‑petitioner and during the process the brother of the husband of the lady also arrived there but he did not make any attempt to rescue the lady from further dishonour on the other hand just chained the door from the outside leaving the culprit and the prosecutrix in the same room which also makes the case arguable for the purposes of bail. Moreover, it also does not appeal to human common sense that the husband when informed about the Zina being committed with his wife instead of coming to the spot without confirming the allega tion went to the Police Station and lodged the report. Since it is a stage at which I am not supposed to go into the deep merits of the case I think that the case of the accused‑petitioner is quite arguable for the purposes of bail and accordingly without going deep into the merits of the case I direct the release of the accused‑petitioner on bail subject to his furnishing bail bonds in the sum of Rs. 10,000 with two sureties each in the like amount to the satisfaction of any Magistrate First Class, D. I. Khan.

M. Y. H. Bail granted.

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