2005 PLP 1634 (YLR)
Mst. FAUZIA BIBI and 2 others — Petitioners Versus THE STATE — Respondent
| Citation | 2005 PLP 1634 (YLR) |
| Forum / Court | Lahore |
| Bench Members | Sardar Muhammad Aslam, J |
| Parties | Mst. FAUZIA BIBI and 2 others — Petitioners Versus THE STATE — Respondent |
| Primary Law | (b) Words and phrases, (a) Criminal Procedure Code (V of 1898)- |
Q1: What are the key laws and sections cited in 2005 PLP 1634 (YLR)?
This judgment primarily cites: (b) Words and phrases, (a) Criminal Procedure Code (V of 1898)- as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2005 PLP 1634 (YLR)?
The case was heard and decided by the Lahore bench comprising: Sardar Muhammad Aslam, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2005 PLP 1634 (YLR) (Mst. FAUZIA BIBI and 2 others — Petitioners Versus THE STATE — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Muhammad Ilyas Siddique and Arif Mahmood for Petitioners.
Headnotes / Summary
Ss. 497 & 156-B [as amended by Criminal Law (Amendment) Act (I of 2005)]
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)
Penal Code (XLV of 1860), S.109
Bail, grant of--Case against accused fell within purview of S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and according to S.156-B, Cr.P.C. no police officer below the rank of Superintendent of Police would investigate such offence nor such accused would be arrested without permission of the Court-- Investigation in case had not been conducted by Superintendent of Police and arrest of accused was also made without, permission of Court in clear violation of newly added provision of law
Accused were entitled to grant of bail on that score alone
Both male and female accused allegedly were found in one room during investigation, 'but no mention was made in F.I.R. that both accused had undressed themselves and were indulging in commission of Zina
Mere presence of accused in one room, was not proof of commission of offence--Accused persons were husband and wife and sufficient incriminating evidence was not available against accused, at the present-co-Accused were admitted to bail, in circumstances.
'Person' defined and explained. Mobarik Ali Ahmad v. The State of Bombay PLD 1958 SC (Ind.) 115 ref. M.D. Shahzad for the State with M.A. Rehamn, S.I.
Judgment & Decree
"Notwithstanding anything con tained in this Code, where a person is accused of Offence of Zina under the Offence of Zina" (Enforcement of Hadood) Ordinance, 1979 (VII of 1979), no police officer below the rank of Superintendent of Police shall investigate such offence nor shall such accused be arrested without permission of the Court. Explanation:--In this section Zina does not include "Zina-bil-Jabr"."
6. Bare reading of the above section shows that a police officer not less thana Superintendent of Police shall investigate such an offence nor shall such accused be arrested without the permission of the Court, where a person is accused of offence of Zina.
7. The word person has not been defined either in the Amending Act or in the Criminal Procedure Code. Section 4 of the Criminal Procedure Code in its application to person under heading words to have same meaning, as in Pakistan Penal Code reads as under:-- "All words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined shall be deemed to have the meaning respectively attributed to them by the Code.
8. The word person has been defined under section 11 of the Pakistan Penal Code, 1860:- "
11. Person".
The word "person" includes any company or Association, or body or person, whether incorporated or not.
9. In section 2 of the Pakistan Penal Code, 1860 in relation to punishment of offences committed within Pakistan it is provided that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within Pakistan.
10. The word person used hereinabove has been interpreted in Mobarik Ali Ahmad v. The State of Bombay PLD 1958 SC (Ind.) 115; as all persons without limitation and irrespective of nationality, allegiance, rank, status, caste, colour or creed.
11. In Chambers English Dictionary the word person is defined as under:- "Person:
a living soul or self -conscious being a personality; a human being, in composition used instead of man to avoid illegal or unnecessary discrimination on grounds of sex e.g. bar-person, chairperson, post-person."
12. In Concise Oxford Dictionary the word person is defined as under:- "Person
individual human being (a cheerful and forthright person; living body of human being (he had a tine person; attracted by her fortune not her person).
13. In Black's Law Dictionary the word person is defined as under: "Person:--In general usage a human being (i.e. natural person) though by statute term may include a firm, labour organization, partnerships, associations, corpo ration, legal representatives, trustees, trustees in bankruptcy or receivers."
14. The person mentioned in section 156-B, Cr.P.C. is of wider import and cannot be assigned restricted meaning. It includes a man and woman both.
15. The investigation has not been conducted by Superintendent of Police. Arrest were made without permission of Court in clear violation of, the newly added provision of law. The petitioners are entitled to grant of bail on this score alone.
16. As to the merits of the case' the complainant S.-I. claims to have obtained search warrant on 29-1-2005 and after constitution of a raiding party raided the house on 30-1-2005 at 5-30 a.m. morning. Call bell was pressed. Zakar petitioner opened the door and on seeing the police party tried to shut the door but was overpowered by the police officials. On search of the rooms they found petitioners Shafa Batool and Ayaz Khan in one room and Mst. Fauzia Bibi and Ghazi Khan in another room. No mention is made in the F.I.R. of petitioners having undressed themselves, and were indulging in commission of Zina. Mere presence in one room is not proof of commission of offence. Petitioner No.1 and petitioner No.3 are husband and wife. Sufficient incriminating evidence is not available against the petitioners at the present.
17. For what has been stated above, both the petitions are allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of the learned tried Court. H.B. T./F-86/L Bail granted.