2008 PLP 949 (MLD)

SYED SHABBAR RAZA RIZVI, J.

The petitioner seeks post-arrest bail in F.I.R. No. 244 of 2005, dated 5-8-2005, under sections 10 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Barana District Jhang.

2. Briefly, according to the F.I.R., the petitioner abducted daughter-in-law of the complainant namely, Nanhi Bibi.

3. The learned counsel for the petitioner submits that serious violation of section 156(b), Cr.P.C. has been done by the Investigating Officer, therefore, the basis of further proceedings is illegal and without justification. The learned counsel submits that the petitioner was married to the said lady on 2-5-2005 in accordance with law of the land. He further submits that in support of contention of the petitioner, co-accused Nanhi Bibi had filed Writ Petition No.17903 of 2005, wherein she contended that she was not abducted by anyone instead she (sic) that the petitioner was arrested on 4-9-2005 and since then he has been behind the bars.

4. On the other hand, the learned counsel for the complainant submits that Nanhi Bibi had married to his son Ghazanfar on 9-2-2005, therefore, at the time of kidnapping/abduction, Mst. Nanhi Bibi was already married. He submits that when Mst. Nanhi Bibi was recovered, she supported the version of the complainant while recording her statements under sections 161, Cr.P.C. and 164, Cr.P.C. but she was again abducted by a brother of the petitioner. He further submits that another F.I.R. No. 42 of 2006 at Police Station Barana, Jhang was registered against the accused persons.

5. I have heard the learned counsel for the parties. I have gone through the Statute under which section 156, Cr.P.C. was amended. Under Act I of 2005 Criminal Law (Amendment) Act, 2004, section 156(b), Cr.P.C. was amended, according to this amendment "Notwithstanding anything contained in this Code, where a `person' is accused of offence of Zina under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), no police officer below the rank of a Superintendent of Police shall investigate such offence nor shall such accused be arrested without permission of the Court." The record shows that present case was not investigated by a Superintendent of Police. Similarly, before arrest of the petitioner, no permission from the Court was sought. The above amendment was effected on 11-1-2005; whereas present F.I.R. was registered on 5-8-2005, thus the non-compliance of provisions of section 156(b), Cr.P.C. is serious and entails consequences. The whole investigation and subsequent proceedings on basis of the said investigation have become illegal. Reference may be made to Shafiq-ur-Rehman v. State (2006 MLD 357) and (2005 YLR 1634). The expression "person' mentioned in section 156(b) includes both "man" and "woman".

6. As regards to the fact whether marriage of Mst. Nanhi Bibi with petitioner, as stated by the complainant, with his son Ghazanafar is valid or not, requires a deeper appreciation, which is not permissible at this stage. However, this conflict also creates doubt. Benefit of doubt goes to the accused person even at the bail stage. Thus, in view of the above discussion and reasons, this bail application is allowed subject to petitioner's furnishing surety bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the Trial Court or Ilaqa Magistrate. H.B.T./M-67/L Bail granted.