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Criminal Revision Petition No.5 of 1987, decided on 20th March, 1988.

(Revision Petition against the order of Shariat Court dated 2 2 1987, in Criminal Miscellaneous No.147 of 1986).

S. 497(5) Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Ordinance (XXX of 1979), Ss. 10, 11, 16 & 19 Bail, cancellation of Allegation of Zina Dispute with regard to question of Nikah of accused yet to be settled by Trial Court after recording evidence of both parties and till that stage the case against accused was one of further inquiry Grounds highlighted in judgment of Court, granting bail, not suffering from any infirmity and its discretion in granting bail could not be said to have been exercised in arbitrary fashion or in disregard of settled principles governing bail Interference declined in order granting bail in circumstances.

Akbar Ali v. The State 1979 S C M R 132; Abdul Khaliq v. The State P L D 1986 Pesh. 119; Shabir Hussain Shah v. The State P L D 1986 S C (AJ&K) 105 and Chaudhry Muhammad Khan v. Sanaullah and another P L D 1971 S C 324 ref.

S.497 Bail Each case to be decided in the light of its own facts and no hard and fast rule of universal application, held, could be laid down.

--S. 497(5) Bail Matter discretionary Matter of bail, held, was essentially in the discretion of Courts and if after appreciating overall facts and circumstances of case it was found that accused was entitled to be released on bail and order granting bail suffered from no legal or factual infirmity of fundamental nature, such an order would not be disturbed.

Muhammad Ismail v. Patten Malak and others 1979 S C M R 91 and Karamat Ali v. The State and another 1979 S C M R 438 rel.

Kh. Muhammad Saeed for Petitioner.

Muhammad Akram with Raja Mumtaz Hussain Rathore for Respondent.

Through this revision petition Muhammad Sharif, complainant, petitioner herein, seeks exception to an order passed by a learned Single Judge of the Shariat Court on 2 2 1987. By this Order the learned Judge refused to disturb the orders of the Tehsil and District Criminal Courts allowing bail to the respondent for Offences under sections 10, 11, 16 and 19 of Offence of Zina (Enforcement of Hudood)

To understand the matter "facts in brief may be narrated. On a report made by Muhammad Sharif, petitioner, the father of Mst. Zubaida Begum, Muhammad Akram and Mst. Zubaida Begum were arrested by the police under sections 10, 11, 16 and 19 of the Offence of Zina (Enforcement of Hudood) Ordinance. The Tehsil Criminal Court allowed bail to both of them. Muhammad Akram accused (respondent) was allowed bail vide order dated 3 8 1986. The District Criminal Court in appeal felt advised not to disturb the bail order and the appeal moved by the appellant (petitioner) was dismissed on 16 10 1986. The Shariat Court, as said earlier, also could not tie persuaded to cancel the bail allowed to the non petitioner and the petition for cancellation of bail moved by the petitioner (appellant) was disallowed vide order dated 2 2 1987. Hence this revision petition to assail the said judgment of the Shariat Court.

Kh. Muhammad Saeed, the learned counsel for the petitioner, contended that Nikah of Mst. Zubaida Begum was validly contracted with Saqib and, therefore, the second Nikah with Muhammad Akram, in presence of the Nikah of Saqib is an offence under the relevant law. He further submitted that under section 9 of the rules called Azad Jammu and Kashmir Registration of Nikah Rules 1985, the second Nikah even if admitted to have been contracted is not a valid Nikah as the same was performed in contravention of the Rules. It was also argued that the Supreme Court in cases of Zina seldom allows bail and in some cases bail allowed by the High Court was even cancelled by the Court.

In support of his contention the learned counsel has invited my attention to Akbar Ali v. The State 1979 S C M R 132, Chaudhry Muhammad Khan v. Sanaullah and another P L D 1971 S C 324, Abdul Khaliq v. The State P L D 1986 Pesh. 119 and Shabir Hussain Shah v. The State P L D 1986 S C (AJ&K) 105.

"In Chaudhry Muhammad Khan v. Sanaullah and another P L D 1971 8 C 324, it was observed:

"The final report under section 193, Cr.P.C. having been submitted in the Court of the Inquiry Magistrate and the statements of a number, of witnesses recorded by him, section 497(2), Cr.P.C. was not attracted. There is no other provision in law under which a further inquiry could be made by the police. "

In Akbar Ali v. The State 1979 S C M R 132, it was observed that in the circumstances of the case provision of section 497(2) could not be attracted as final challan had already been submitted against the accused before the trial Court.

In Abdul Klialiq v. The State P L D 1986 Pesh. 119, it was held that since the prosecution succeeded to bring sufficient evidence on record to connect the accused with the commission of offence of Zina with a married lady, he cannot be favoured with the concession of bail for the prohibitory offences in the circumstances of the case. In Shabir Hussain Shah v. The State P L D 1986 S C (AJ&K) 105, while dealing with the point as to whether circumstances warranted bail in that case, it was observed:

"In this case Mst. Razia Begum, in her statement under section 161, Cr.P.C. states that she was forcibly lifted from her way to Pallandri and later on subjected to Zina by Shabir Hussain Shah, appellant. Her version prima facie, finds support from the report of the Chemical Examiner in which it is stated that "Swab is stained with semen and blood" Besides, the occurrence is also stated to have been witnessed, apart from Jamila Begum and Anwar Hussain Shah by Safir Afzal and Nasir Mahmood too who more or less own the prosecution case. Can we say that on the fact of the above, circumstances the Shariat Court has not exercised the discretion in a legal fashion in disallowing bail to the appellant "

I have minutely studied the facts of each case. I believe that the cases cited by Kh. Muhammad Saeed, are distinguishable and have no relevancy with the facts of the present case. It is a settled law that in criminal matters each case is to be decided in the light of its own facts and no hard and fast rule of universal application can be laid down. Besides the matter of bail is essentially in the discretion of the Shariat Court/High Court and other relevant Courts. If after appreciating the overall facts and circumstances of the case it is e held that the accused is entitled to be released on bail and the order does not suffer from any legal or factual infirmity of fundamental nature, such an order would not be disturbed. Identical statement of law appears in Sultan Khan v. Amir Khan and another PLD 1977 SC 642, Muhammad Ismail, v. Patten Malak and others 1979 SCMR 91, Karamat Ali v. The State and another 1979 S C M R 438 and Inayat Ullah and 4 others v. The State 1979 S C M R 441.

In the instant case Mst. Zubaida Begum, according to prosecution, was married to Saqib prior to the alleged incident whereas, according to the defence, at the time of incident, she as unmarried and she contracted her first marriage with Muhammad Akram; respondent, on her own and also made a statement to that effect before a Magistrate at Muzaffarabad.

In the circumstances, at this stage, it is neither possible nor advisable to say as to which of the two versions is correct. The prosecution says that Mst. Zubaida Begum was firstly married to Saqib and the second Nikah with Muhammad Akram (if at all there is any) is an offence. It is thus, obvious that the dispute with regard to the Nikah of Mst. Zubaida Begum is to be settled by the trial Court after recording evidence of both the parties. Till that stage it has rightly been held to be a case of further inquiry and I see no reason to have a different view from the one taken by the Courts below; especially in the circumstances when the Courts below based their findings" on good grounds. The grounds highlighted in the judgment do not suffer from any infirmity to say that the discretion[ has been exercised in an arbitrary fashion or in disregard" to the settled principles governing bail.

In the circumstances I do not feel inclined to interfere with the discretion exercised by the Shariat Court. This revision petition, therefore, stands dismissed.

M.Y.H./219/S.C.A Petition dismissed.

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