Mst. JAMEELA vs THE STATE
This matter concerns a post-arrest bail application filed by a female accused facing trial under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question was whether the accused was entitled to bail pending trial given the circumstances of the case and the statutory provisions regarding further inquiry. The Court held that the applicant was entitled to bail, reasoning that the prosecution case lacked independent eye-witnesses, the F.I.R. was delayed without explanation, and the medical evidence supported the accused's claim of physical abuse, including the shaving of her head. Furthermore, the Court noted that the accused was menstruating at the time of the alleged incident, casting doubt on the prosecution's narrative. The Court established the principle that where a case necessitates further inquiry under the Code of Criminal Procedure, 1898, and where the accused is a female, the case falls outside the restrictive prohibitions of bail, warranting the exercise of judicial discretion in favor of the accused.
- Does the absence of independent eye-witnesses in a Zina case constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can a female accused be granted bail under the proviso to Section 497(1) of the Code of Criminal Procedure 1898 even in cases involving serious offences?
- Does an unexplained delay in lodging an F.I.R. justify the grant of bail pending trial?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(2), Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
1. ' The facts leading to present application . For bail are that applicant/accused Mst. Jameela is facing trial in Sessions Case No,553 of 1998 before learned IIIrd Additional Sessions Judge, Karachi West under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which has arisen out of F.I.R. No,252 of 1998 of Police Station T.P.X., Karachi West.
2. ' The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by complainant Abdul Qadir on 3-10-1998 are that he is serving in Fisheries Department. His wife Mst. Jamila used to reside with him. From his wedlock he has one son Ghulam Nabi aged about 3 years. On 3-10-1998 in the night he went on duty and his wife alongwith child remained at residence. Adjacent to his room, his parents were also living. At about 4 a.m. He reached home and found complete darkness in the room. He lit a stick of match box and saw that Irfan and his wife were busy in sexual intercourse. The complainant raised hue and cry, whereupon his father and mother came. They also saw them in naked position. Both Jamila and Irfan wore their clothes and they were produced before Sardar Hussain Member of Khidmat Committee in his office and he was also apprised of the incident. Thereafter, a quarrel took place and when no settlement was arrived at between the parties, Sardar Hussain asked, them to lodge the report against both Irfan and Jamila. The complainant brought both accused at police station where he lodged the report.
3. ' After usual investigation the applicant/accused was sent up to stand trial.
4. ' The applicant/accused applied for bail but her bail plea was declined by impugned order, dated 30-11-1998.
5. ' I have heard the learned counsel for the applicant/accused and Mr. M. Arshad Lodhi learned Assistant Advocate-General, Sindh who very candidly conceded to the grant of bail to the applicant/accused.
6. The perusal of the material placed on record shows that no independent private eye-witness has been cited in the F.I.R.
7. ' The applicant/accused was not only belabored by the complainant party but her head was also shaved. This fact is confirmed by Medical certificate of applicant/accused issued by the Women Medico-legal Officer of Police Surgeon's Office, Karachi to whom she was referred by the Investigating Officer for examination and report. The certificate shows that marks of injuries with hard and blunt weapon were present on her person and her head was also shaved. No stains were found on her clothes and opinion with regard to any fresh act was reserved for want of Chemical Examiner's Report. Though she was medically examined on 5-10-1998 but it was not received till 26- 3-1999 when the present application was disposed of by a short order. The medical certificate further shows that applicant/accused was passing menses when she was examined. The F.I.R. Also shows that a quarrel took place between the parties in the office of Khidmat Committee and when there was no settlement between the parties upon the direction of the Member of Khidmat Committee, report was lodged. The F.I.R., is delayed by 6-1/2 hours whereas the police station is situated in front of the office of Sardar Hussain, Member Khidmat Committee before whom initially the accused were produced and who was apprised of the incident. No plausible explanation with regard to this inordinate delay has been given in the F.I.R.
8. ' Thus, the case necessitates further enquiry as contemplated under section 497(2), Cr.P.C. In an identical case of Iftikhar Gul and 2 others v. The State reported in 1996 SCM R 1130(2) bail was granted to the accused by Honourable Supreme Court. Moreover, the applicant/accused is female and her case on the ground of sex also merits consideration and it goes out of the prohibition contained under section 497(1), Cr.P.C.
9. ' The upshot of the above discussion is that applicant/accused is entitled to bail.
10. ' By my short order, dated 26-3-1999 bail was granted to the applicant/accused in the sum of Rs,25,000 (Rupees twenty-five thousand only) and above are the reasons for the same.
11. ' The observations made hereinabove are tentative in nature, and the learned trial Judge shall not be influenced by them in any way while deciding the case on its own merits after independently evaluating the evidence recorded at the stage of trial.