MUHAMMAD NAWAZ Versus State
This matter concerns a petition for post-arrest bail filed by an accused charged with offences under the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. The core legal questions involved the legality of an investigation conducted by an officer below the rank of Superintendent of Police (S.P.) and whether the petitioner was entitled to bail given the complainant's affidavit of innocence and the alleged marriage between the petitioner and the abductee. The Court held that the petitioner was entitled to bail, noting that the investigation by an officer below the rank of S.P. violated the statutory requirements of the Code of Criminal Procedure, 1898. Furthermore, the Court observed that the complainant's affidavit and the abductee's previous statement regarding her marriage necessitated further inquiry, rendering the case one of further inquiry. The Court laid down the principle that investigations into cases registered under the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 must be conducted by an officer of the rank of S.P. as mandated by law, and that non-compliance with this provision is a significant factor in bail considerations.
- Can an officer below the rank of Superintendent of Police investigate a case registered under the Offence of Zina (Enforcement of Hadood) Ordinance, 1979?
- Does an affidavit of innocence by the complainant constitute grounds for further inquiry in a bail application?
- Is a petitioner entitled to bail when the investigation has been conducted by an unauthorized officer and the trial is not likely to commence in the near future?
- Section 156-B, Code of Criminal Procedure 1898
- Section 22-A, Code of Criminal Procedure 1898
- Offence of Zina (Enforcement of Hadood) Ordinance, 1979
ORDER
MUHAMMAD JEHANGIR ARSHAD, J .---Muhammad Yousaf, D.S.P. present in Court submits that on 19-6-2006 Rab Nawaz, D.S.P. had come to the Court but as this Bench was not functioning, therefore, thinking that the case stood cancelled, he left the Court not knowing that the case was in fact fixed before my learned brother Nazir Ahmad Siddiqui, J. hence nobody appeared before his lordship on the said date when the case was called.
2. Muhammad Yousaf, D.S.P. further submits that there is no S.P (Investigation) posted at Vehari and that he has been given the charge of the said post. I am afraid that the D.S.P. can act as an S.P. to investigate the case registered under the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 as in terms of section 156-B, Cr.P.C. it is only an officer of the rank of S.P. who can investigate the case registered under the said Ordinance. Therefore, the D.I.G., Multan Range is directed to ensure that either an officer of the rank of the S.P. is posted as S.P. Investigation, Vehari or the investigation of such-like cases be handed over-to some officer of the rank of the S.P. outside the District, Vehari. Copy of this order be immediately sent to the D.I.G., Multan, for compliance.
3. In the meanwhile Muhammad Yousaf, D.S.P. present in Court shall not enter into investigation of any case registered under the Ordinance No.VII of 1979 as contemplated by section 156-B,. Cr.P.C. except the cases of Zina-bil-Jebr.
4. It has been submitted by the learned counsel for the petitioner that the petitioner was arrested on 11-2-2006 by Abdus Sattar, S.-I. of Police Station, Daniwal District, Vehari, from within the jurisdiction of Police Station, Lohari Gate, Multan, as is evident from the copy of Rapt No.21 dated 11-2-2006 entered with Police Station, Lohari Gate Multan. Abdus Sattar, S.-I. present in Court admits this fact and he also admits that Mst. Razia abductee was recovered by him from the custody of Muhammad Nawaz petitioner etc. on 11-2-2006 and she was handed over to her parents on the same day in the Court of learned Illaga Magistrate Daniwal, District Vehari. It has been further submitted by the learned counsel for the petitioner that in fact Mst. Razia Bibi had contracted marriage with the petitioner on 16-1-2006 which was duly registered on 27-1-2006 and Mst. Razia Bibi made a statement before the learned Addl. Sessions Judge, Multan on 3-2-2006 in connection with application under section 22-A, Cr.P.C. on which report was called for from the S.H.O. of Police Station, Qutabpur, Multan for 7-2-2006 on which date the learned Addl. Sessions Judge passed the following order:--
"The petitioner has moved this petition seeking direction to respondents Nos.1 and 2 not to harass her at the instance of respondents Nos.3 and 4. Report of respondent No.1/S.H.O. Police Station, Qutabpur, has been received, whereas respondent No.2 does not fall within the jurisdiction of this Court. Respondent No.1 has reported that no application is received at Police Station, against the petitioner and her husband and they were also not summoned. Therefore, this petition is disposed of with the direction to respondent No.1/S.H.O. Police Station, Qutabpur, Multan not to harass the petitioner at the instance of other respondents."
The learned counsel further submits that on 12-3-2006 Muhammad Sarfraz complainant of the case had sworn an affidavit that he was satisfied about the innocence of Muhammad Nawaz petitioner and that he wanted to withdraw the case got registered by him. This affidavit according to the learned counsel for the petitioner was received by Police Station, Daniwal and thereafter sent to the trial Court with the judicial file.
5. At present Mst. Razia is in the custody of her parents. The question whether she was abducted by the petitioner and subjected to Zina-bil-jabr needs further inquiry in view of the affidavit submitted by Muhammad Sarfraz complainant and the admission of Mst. Razia in her application filed by her on 7-2-2006 before the learned Additional Sessions Judge/ Justice of Peace at Multan admitting her marriage with Muhammad Nawaz petitioner. The petitioner is behind the bars since 11-2-2006 and incomplete challan has been submitted in the Court and trial of the case is not likely to commence in the near future. Even otherwise the legal validity of the arrest of the petitioner without permission of the Court and the investigation of the case so far carried out by a person below the rank of an S.P. as required by section 156-B, Cr.P.C. is also to be determined and resolved by the learned Court after trial. This petition is accordingly allowed and the petitioner is ordered to be released of bail subject to his furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial Court.
6. So far as the arrest of Muhammad Nawaz petitioner by Abdus Sattar, S.-I. and handing over of custody of Mst. Razia to her parents is concerned, the petitioner is at liberty to proceed against Abdus Sattar, S.-I. if he so advised in accordance with law. Disposed of.
H.B.T./M-424/L Bail granted.