2007 PLP 134 (MLD)

TARIQ SHAMIM, J.

Through this .consolidated order I propose to decide Criminal Miscellaneous No. 1790-B of 2006 filed by Haq Nawaz, Criminal Miscellaneous No. 1831-B of 2006 filed by Imam Bakhsh and Mst. Nasim Bibi and Criminal Miscellaneous No.1776-B of 2006 filed by Mst. Rukhsana Khan for their post-arrest bail in case F.I.R. No. 90 of 2006, dated 19-4-2006 for offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Lohari Gate Multan. The brief facts of the case are that on spy information the complainant namely Muhammad Shafi A.S.-I. constituted a raiding party and conducted a raid at the upper storey of the house situated at Chowk Aam Khas Bagh where allegedly two couples i.e. the petitioners were found committing zina who were apprehended at the spot.

2. The learned counsel for the petitioner at the very outset has submitted that the raid conducted by the police officials was against the law and against the injunctions of Islam; that the petitioners were not medically examined by any doctor; that petitioners, in Criminal Miscellaneous No.1831 of 2006, namely Imam Bakhsh and Mst. Nasim Bibi had contracted marriage on 8-4-2006 whereas the F.I.R. was registered on 19-4-2006. Further states that Imam Bakhsh being a friend of Haq Nawaz had come to his house along with Mst. Nasim Bibi his wife for visiting purpose and that Mst. Rukhsana Khan was in fact maid-servant of the said Haq Nawaz. Also maintains that since Imam Bakhsh and Mst. Nasim Bibi petitioners were married as such no offence as, alleged in the F.I.R. had been committed and lastly submits that the investigation is complete and the petitioners are no more required by the police for investigation, hence the petitioners were entitled to the concession of bail.

3. Conversely the learned counsel appearing on behalf of the State does not seriously oppose the grant of bail to the petitioners. However, submits that challan in case has been submitted on 28-5-2006 against all the four petitioners and, therefore, they are not entitled to the concession of bail.

4. After hearing the learned counsel for the parties and going through the record it has transpired that the raid in question had been conducted by the police on secret information that the petitioners were indulging in Zina. The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 does not contain any provision which permits the conduct of the raid in a house for discovering and unearthing the commission of zina therein. This Ordinance does not provide for intrusion into anyone's house only to find out commission of offence of Zina. In fact the Holy Quran prohibits such an act and reference in the said regard can be made to Surah-An-Nur Verses 27 and 28 Violation of the privacy of one's house through arbitrary intrusion by the police without any authority of law is condemnable being repugnant to the concepts of human rights relatable both to the dignity of the man and privacy of the home.

5. Another question which arises is as to whether case can be registered under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the report of a Mukhbar. Since the Mukhbar is entitled to have his name and identity kept secret this would allow him to make false imputation of Zina with impunity. This would defeat the spirit of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as Offence of Qazf (Enforcement of Hadd) Order, 1979. Thus such an act would not be in conformity with the injunctions of Holy Quran and Sunnah. Therefore, it can be safely said that the conduct of the police to register cases under the Hudood Ordinance on report of Mukhbar is totally unwarranted and against the injunctions of Islam. Profitable reference can be made to the case of Muhammad Yousaf v. The State (PCr.LJ 897) and Mst. Rabia Bibi v. The State (2004 PCr.LJ 1451).

6. Further in the instant case the male accused have not been medically examined by any doctor for determination of potency or otherwise. It will not be out of place to mention here that the female accused involved in this case were never got medically examined and no vaginal swabs of the said ladies were sent to the office of the Chemical Examiner for detection of semen so as to establish commission of Zina by them. Even otherwise the petitioners Nos.3 and 4 being females, their case is covered by proviso to subsection (1) of section 497, Cr.P.C. The investigation in the case is complete and the challan has been submitted before the trial Court, therefore, physical custody of the petitioners is no more required at this stage for the purpose of the investigation.

7. For what has been discussed above all the three above mentioned petitions are allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 each with one surety each in the like amount to the satisfaction of the trial Court. S.M.B./H-32/L Petitions allowed.