MUHAMMAD YOUSAF Versus THE STATE
This matter arises from two consolidated petitions filed by Muhammad Yousaf and Muhammad Hasan seeking post-arrest bail in case F.I.R. No. 171 registered on 20-5-2003 at Police Station 'B' Division, Okara, for offences under sections 10(2), 13, and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question concerns whether the petitioners are entitled to post-arrest bail where the raid was conducted to apprehend a proclaimed offender but resulted in allegations of Zina, the female accused were not medically examined, no vaginal swabs were sent to the Chemical Examiner, and the investigation has already been completed with a challan submitted. The court held that the petitions should be allowed, granting post-arrest bail to the petitioners. The key principle laid down is that where the investigative record lacks essential medical corroboration such as vaginal swabs and medical examinations, and the physical custody of the accused is no longer required for investigation after the submission of the challan, further inquiry is warranted under section 497(2) of the Code of Criminal Procedure, entitling the accused to bail.
- Are accused persons entitled to post-arrest bail when female co-accused have not been medically examined and vaginal swabs have not been sent for chemical examination?
- Does the completion of investigation and submission of challan render the physical custody of petitioners unnecessary for the purpose of further investigation?
- Whether post-arrest bail should be granted when a police raid conducted to apprehend a proclaimed offender results in uncorroborated allegations of Zina?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 13, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 14, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
Through this consolidated order I propose to decide Criminal Miscellaneous No. 3556/B of 2003 filed by Muhammad Yousaf petitioner and Criminal Miscellaneous No.3638B of 2003 filed by Muhammad Hasan petitioner for their post-arrest bail in the same criminal case, i.e. case F.I.R. No.171 registered at Police Station "B" Division, Okara on 20-5-2003 for offences under sections 10(2)/ 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 together.
2. After hearing the learned counsel for the parties and going through the record it has been noticed that the raid in question had been conducted by the local police on the pretext of apprehending a proclaimed offender namely Mujahid alias Mathan but admittedly the A raiding party had failed to apprehend the said proclaimed offender but statedly it had- found the petitioners indulging in Zina with different ladies. deprecated by this Court in the case of Muhammad Naeem and another v. The State 1999 PCr.LJ 463. It is not disputed that the female accused persons involved in this case were never got medically examined and no I vaginal swabs of the said ladies had ever been sent to the office of the Chemical Examiner for detection of semen so as to establish commission of Zina by them. The investigation of this case has already been completed and a challan has already been submitted and, thus, physics; custody of the petitioners is no longer required at this stage for the purposes of investigation.
3. For what has been discussed above both the above-mentioned petitions are allowed and the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.
H.B.T./M-125/L Bail granted.