MST. BILQIS Versus THE STATE

Vide F.I.R. No.152 dated 17-4-198,6 Police Station Havelian, District Abbottabad a case was registered under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as Ordinance) in respect of the abduction of Mst. Balqis, a married lady, as against Farid Khan (co-accused) son of Mashal Khan. The abductee was recovered on 20-9-1986 from the house of the step-father of Farid co-accused. Her confessional statement was recorded on 21-9-1986 in which she confessed to have been enticed away by the co-accused with ornaments and garments from the house of her husband in his absence, was kept by Farid co-accused at different places and was also committed intercourse upon. She was accordingly arraigned as co-accused and charges under section 5/10 were added in the F.I.R. Later on a challan was submitted against the accused to face trial on charges under section 5/10/11/16 of the Ordinance. The trial has not commenced as yet.

2. Irrespective of the merit of the case, learned counsel for the accused-petitioner asked for the concession of bail under the first proviso to subsection (1) of section 497, Cr.P.C. on account of sex. He further prayed for bail under the third proviso to subsection (1) of section 497, Cr.P.C. since she was accused of an offence not punishable with death and has been detained for such offence for a continuous period exceeding one year and her trial for such offence has not concluded. In the context reference was made to sections 8 and 9 of the Ordinance, which respectively pertain to the proof of Zina liable to Hadd, and cases in which Hadd shall not be enforced. It was contended that prosecution has the only evidence of abductee's confession, which she has since retracted, and as such the punishment of Hadd can neither be imposed upon her nor enforced against her. Reference was next made to section 10 of the Ordinance where under Zina liable to Tazir is punishable with rigorous imprisonment for a term extending to 10 years.

3. Consequently petitioner's case has been found covered by the) first proviso as well the third proviso to subsection (1) of section c 497, Cr.P.C. and accordingly she is released on bail on furnishing bonds in the sum of Rs.20,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.

M.Y.H. /592/P

Bail granted.