1999 P Cr (PLP)

Mr. Ashiq Hussain Mehar, learned counsel appearing on behalf of State has opposed the grant of bail and has contended that delay in lodging the F.I.R. is not fatal to the prosecution case; prosecutrix was recovered from the house of accused in presence of independent Mashirs; that the case is fresh and under section 10(2), Offence of Zina (Hudood) Ordinance, 1979 sentence is 10 years; that the semen was detected on the Shalwar and vaginal slide of prosecutrix. I have heard the learned counsel for the applicant/accused and also State Counsel and have perused the documents filed in support of bail application and the impugned order dismissing the bail application. It is an admitted position that the alleged offence took place on 1‑12‑1997 whereas F.I.R. was lodged on 14‑12‑1997; the distance between scene of offence and police station is about 3 kilometres and explanation with regard to this delay is only that complainant continued search his wife which in my view is not plausible explanation. From the plain reading of F.I.R. material relating to abduction, enticement and Zina is lacking and on this aspect of matter no witness has been cited or examined. There is solitary word of the complainant who, too, was not present when alleged act of abduction, enticement or Zina took place. Only evidence is that the prosecutrix was secured from the house of applicant/accused. For the sake of convenience section 8 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is reproduced below:‑‑

8. Proof of Zina‑bil‑Jabr liable to Hadd.‑‑‑ Proof of Zina or Zina‑bil‑Jabr liable to Hadd shall be in one of the following forms, namely‑‑ (a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or (b) at least four Muslim adult male witnesses about whom the Court is satisfied having regard to the requirement of 'Tazkiya‑al‑Shahood' that they are truthful persons ahd abstain from major sins ('Kabair'), give evidence as eye‑witnesses of the act of penetration necessary to the offence: Provided that, if the accused is a non‑Muslim, the eye‑witnesses may be non‑Muslims. Thus, it is crystal clear that in order to bring the case within the ambit of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 either there should be a confession of the accused with regard to commission of the offence or there should be at least four adult male Muslims of unimpeachable character who witnessed the act of penetration. All this is lacking in the present case. In a D.B. decision Muhammad Ibrahim v. Soofi Abdul Razaq and another reported in 1997 PCr.LJ 263 it has been held that merely because a male and female who lived in the same room, must have, therefore, committed Zina was not enough for conviction and that there must be some categorical assertion by witness showing existence of illicit relations (Zinc) and at least four witnesses are required who have seen the accused in actual act of intercourse. It is further laid down that these hard rules of evidence indicate that the purpose of law is not to fix Scaffold in crossings to flog people every day but to punish only those who, despite preventive methods adopted by Islam commit Zina in such wanton way that four or more persons can see them. In another D.B. decision Sarkar v. Muhammad Younis, reported in 1981 PCr. LJ 971 (Azad J&K) it has been held that inference of adultery cannot be drawn merely on the ground that the married woman was recovered from the custody of accused. In case of Musamat Akhtar Parveen v. State reported in PLD 1997 Lah. 390 under sirpilar circumstances bail already granted to the accused was confirmed. In case of Allah Rakha v. The State 1990 ALD 435(21 bail was granted in an identical case. So far the report of Chemical Analyser is concerned it reveals that semen was found on the Shalwar and vaginal slide of prosecutrix and no grouping of the same was made. Besides, no semen on Shalwar and Qameez of applicant/accused or on the bed‑sheet secured from the room of accused was detected, nor any slides of the semen of applicant/accused were taken and sent to Chemical Analyser for grouping. In case of Musamat Shehnaz v. The State reported in 1997 MLD 1333. F.I.R. was delayed by 17 days and no semen was sent for granting the bail was granted. In case of Musamat Ehsan Begum v The State reported in PLD 1983 FSC 204 it has been observed as under:‑‑ "The police investigation in Pakistan is not keeping pace with scientific developments. If facilities for grouping of semen be available, as indeed they are, it is not understandable why the Medical Officer examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina‑bil‑Jabr. The Police Officers in their reference to the Medical Officers should, in such cases, invariably request the doctor concerned to take the specimen of semen of the male accused. They should send them for chemical examination and serology alongwith vaginal swabs and clothes/cloth, etc. having seminal stains." The upshot of the above discussion is that the case of applicant/accused is not hit by the prohibition clause contained under section 497(1), Cr.P.C. and requires further enquiry as contemplated under section 497(2), Cr.P.C. The applicant/accused is therefore, granted bail in the sum of Rs.50,000 with P.R. Bond in the like amount to the satisfaction of trial Court. Before parting with this matter I would make it clear that observations made hereinabove are of tentative nature and they may, in no way, be considered while finally disposing of the case. The trial Court will be at liberty to reach its own independent finding after evidence is recorded, without, in any manner, being influenced by what is observed above. H.B.T./A‑277/K Bail granted.