NUSRAT MAI Versus STATE

ORDER

Mst. Nusrat Mai was arrested in a case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 registered against her vide F.I.R. No.158, dated 18-12-1993 with Police Station Sadar Muzaffargarh. She having denied bail by the learned Sessions Judge, Muzaffargarh vide, order, dated 20-2-1994 has approached this Court through this application for the grant of bail.

2. Haq Nawaz son of. Rahim Bukhsh, real paternal-uncle of Mst. Nusrat, the petitioner lodged a report at 12-40 p.m. on 8-12-1992 that Mst. Nusrat his real niece was married to Sajjad Hussain in Village Shah Jamal but for the last few days, she started living in Village Langar Sarai. The complainant was not on speaking terms with the petitioner because of her bad character. He having suspected her activities doubtful starts -her watching secretly. He alongwith Muhammad Aslam, Muhammad Riaz, Abid Hassan and Shabbir Ahmad was watching her when at 11 p.m. in the night they on hearing the whispering of Mst. Nusrat and Abid Hussain peeped into the room of the house where they were present through its ventilator and saw Mst. Nusrat and Abid Hussain committing Zina with each other in the electric light. They after encircling the house informed the police.

3. Mr. Khalid Mahmood Basra, Advocate Khanewal, learned counsel for the petitioner despite number of adjournments and repeated intimation through learned Sessions Judge, Khanewal has not bothered to appear before this Court in this case, however, the petitioner under the direction of this Court has been produced from jail.

4. I have heard the learned counsel for the State and perused the record carefully. .

5. The petitioner, a married lady was allegedly found committing Zina with Abid Hussain in her house but the P.Ws. including the complainant having no approach to enter into the house claimed to have witnessed the occurrence peeping into the room through ventilator in the electric light.

5-A. The narration of the facts in the F.I.R. and the circumstances under which the P.Ws. claimed to have witnessed the petitioner and her paramour committing Zina with each other is not acceptable in normal course. However, even if they could witness the occurrence as they claimed, their conduct is highly unfair to be the truthful witnesses. The credibility of such witnesses being not free from criticism, their evidence lacking the necessary qualification of fairness and correct clean cannot be utilized to curtail the liberty of the petitioner. The conduct of the P.Ws. to peep into the house of the lady during the night to detect her sin and to put her under the charge of Zina carrying rigorous penalty without being conscious of the Injunction of Holy Qur'an and Sunnah is highly unfair, and their evidence cannot be given much weight without deep scrutiny. Almighty Allah says:--

And spy not, neither backbite one another (49.12),

Lo, Those who love that slandar should be spread among believers for them is a painful punishment in this world and the hereafter (24.19);

The Muslims are the best of the people and as such they enjoined to be best in conduct. Islam stands for certain social and moral values and the believers have to translate such values into practice in every day life.

"The best of provision is the right conduct (11.97)"

According to the teachings of Islam, the believers are enjoined to be fair and just in all the dealings. The Holy Qur'an commands in Surrah (XXIV.4):--

"Those who make charge against chaste woman and produce not four witnesses, flog them with 80 stripes:"

7. These verses of the Holy Qur'an laid stress on fair conduct and truth. Truth is the basic idea of the Holy Qur'an and a Muslim is expected always truthful. Islam condemns and strongly disproved spying and searching of sins of others. The manner in which complainant and his companions have witnessed the occurrence made their evidence of suspicious character not qualifying test of truthful person. The allegation of Zina against a woman causing serious damage to her life in the society is always subject to deep scrutiny. Islam professes that unless the offence is not committed at public places and is injurious from the society point of view, it is to be overlooked and ignored on the basis of principle of Parda. The allegation of Zina against a woman is a serious matter in Sharia and if a person accuses a lady and could not produce four witnesses in support of his version, he is liable to be awarded the punishment of 80 stripes and in future his evidence is not accepted.

8. The arrest of the petitioner, a marred lady with her co-accused at the spot and the positive result of the Chemical Examiner itself is not an evidence of commission of Zina unless direct evidence of unimpeachable character is produced. The manner in which the occurrence is claimed to have been witnessed by the P.Ws. being not free from doubt, of it shall be given to the petitioner even at bail stage.

9. Having discussed the conduct of the witnesses, reasonable grounds exist for further inquiry into the guilt of the petitioner and she by virtue of section 497(2), Cr.P.C. has earned a right of bail, in addition to the concession available to her on the basis of sex The petitioner shall be released on bail subject to her furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Muzaffargarh.

N.H.Q./N-264/L Bail allowed.