MUHAMMAD RIAZ Versus THE STATE

ORDER

This is an application for bail before arrest moved by Muhammad Riaz, Mushtaq Ahmed and Abaidullah, accused, who are involved in a case under sections 6/7/11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, and sections 467 and 468, P.P.C., registered at Police Station Shera Kot, District Lahore, vide F.I.R. No.349 of 2001, dated 16‑12‑2001.

2. The facts of the case are that on 16‑9‑2001, Abaidullah, A.S.‑I. on the basis of a tip off allegedly raided a room in the house of one Mushtaq Ahmed resident of Kot Kamboh. He was accompanied by a lady constable Khalida Siraj and two other constables‑‑‑Ahmed Saeed and Muhammad Khan Badshah. Khalida Siraj, lady constable gave a . push and opened the door. Muhammad Saleem and Mst. Sania Bibi were found committing Zina with each other. Abaidullah, A.S.‑I., arrested both of them and got a case registered. Khalida Siraj, lady constable and other P.Ws. did not support the prosecution case. Subsequently, the accused were got discharged. Muhammad Khan, the father of Mst. Sania Bibi, got the instant case registered under sections 6/7 and 11 of the Qazf (Enforcement of Hadd) Ordinance, 1979.

3. Learned counsel for the petitioner contended that the registration of the case on the complaint of Muhammad Khan is unwarranted by law under section 8 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, and that the facts of the case constitute an offence of Qazf liable to Tazir, which is punishable under section 11 of the said Ordinance with imprisonment up to two years and with whipping not whereas the offence under section 7 of the said Ordinance is punishable only with whipping numbering eighty stripes, which is not attracted to the facts of the case.

4. Learned counsel for the complainant submitted that although the F.I.R., in the case in hand, has been lodged by Muhammad Khan but after the registration of the case Sania Bibi made a statement before the police under section 161, Cr.P.C in which she supported the registration impliedly.

5. I have considered the submissions made by the learned counsel for the parties. Muhammad Khan (complainant) is not the person, in respect of whom, the offence of Qazf has been committed and there is also nothing on the record that he had been authorized by any such person. Ordinarily, the report of a cognizable offence can be made by any person and the object of, it is simply to bring the machine of the law into motion but in a case of Qazf, the only person, who is competent to lodge the report to the police or a private complaint directly in the Court of a competent jurisdiction is the person in respect of whom the Qazf has been committed, provided, he is alive or by any other person authorized by him and if the person in respect of whom the Qazf has been committed is not alive, a report to the police or a private complaint to the competent Court of law can be made by any of the descendants or ascendants of that person. In the case in hand, Muhammad Saleem and Mst. Sania, against whom the allegation of. Qazf was levelled, are alive and there is nothing on the record to show that Muhammad Khan complainant was authorized by any of the two. The mere fact that Mst. Sania Bibi has been examined by the police under section 161, Cr.P.C. does not mean that she had authorized Muhammad Khan (complainant) to lodge a. report and the defect pointed out by the learned counsel for the complainant in the registration' of the case does not stand cured.

6. A bare reading of section 5 of the Ordinance VIII of 1979, shows that Qazf liable to Hadd is punishable under section 7 of the Ordinance with whipping numbering 80 stripes when a person commits Qazf of Zina liable to Hadd and for this, we shall have to look to section 8 of the Offence of. Zina (Enforcement of Hudood) Ordinance, 1979, which specifies the mode of proof of Zina or Zina‑bil‑Jabr. Clause (a) of section 8 of the Ordinance deals with the cases, in which, the accused makes before a Court of competent jurisdiction a confession of the commission of offence, whereas clause (b) requires at least four Muslim adult male witnesses about whom the Court is satisfied having regard to the requirements of `Tazkiyah‑al‑Shahood' that they are truthful persons and abstain from major sins (Kabair), given evidence as eye witnesses of .the act of penetration necessary to the offence.

7. A perusal of the F.I.R. bearing No.549 of 2001, dated 16‑9‑2001, out or which, this petition has arisen shows, that the allegations levelled by Ubaidullah, A.S.‑I., did not disclose the commission of an offence punishable under section 5(2) of Ordinance No.VII of 1979. In the case in hand, the, F.I.R. was registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance. 1979, therefore, the present case would in fact, be covered under section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance No.VIII, 1979, which entails punishment of imprisonment of either description for a term, which may extend to two years and with whipping not exceeding forty stripes plus fine.

8. A perusal of Schedule II of the Code of Criminal Procedure, relating to offences against other laws, shows that the offences, which are punishable with imprisonment for one year but less than three years or whipping not exceeding forty stripes with or without imprisonment, are not only bailable but also non‑cognizable, therefore, section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance No.VIII, 1979, read with Schedule II is not only bailable but also non- cognizable.

In view of the above, the petitioners are entitled to the concession of bail as of right. I, therefore, allow this petition and direct the accused to appear before the trial Court and furnish bail bond according to the satisfaction of the trial Court.

N.H.Q./M‑1082/L Pre‑assest bail allowed.