ZAFAR IQBAL vs THE STATE
This criminal petition concerns an application for pre-arrest bail in a case registered under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The petitioner was accused of committing Zina-bil-Raza with a co-accused within the premises of Darul Aman. The core legal question was whether the petitioner was entitled to pre-arrest bail given the conflicting evidence, including a police recommendation for case cancellation, a negative medical report, and a negative Chemical Examiner's report regarding the co-accused. The Court held that the case against the petitioner required further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The Court reasoned that the initial police investigation recommending cancellation, combined with the medical evidence suggesting the co-accused was unmarried and the negative report from the Chemical Examiner, created sufficient doubt regarding the petitioner's guilt. Consequently, the Court confirmed the ad interim pre-arrest bail, emphasizing that where the prosecution's case rests on evidence that is contradicted by forensic and medical findings, the accused is entitled to the benefit of further inquiry.
- Does a negative Chemical Examiner report and a medical report indicating an unmarried status constitute grounds for further inquiry in a Zina case?
- Is an accused entitled to pre-arrest bail when the initial police investigation recommended the cancellation of the FIR?
- Does the submission of a challan by the police following a Magistrate's disagreement with a cancellation report preclude the grant of pre-arrest bail?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Zafar Iqbal, petitioner, through the instant petition seeks pre-arrest bail in case F.I.R. No. 66, dated 10-3-2002, under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 registered with Police Station Gulgasht, Multan.
2. Briefly the prosecution case as per F.I.R. Is that Nikah of Mst. Wazir Begum, the daughter of complainant was performed with one Ahmad Hassan but Rukhsati had not taken place. Zafar Iqbal, the present petitioner, established illicit relation with her and forced her to have divorce from Ahmad Hassan. She consequently filed suit for dissolution of marriage against him and the same was decreed in her favour on 21-1-2001. Therefore, he got her lodged in Darul Aman and there they both had been committing Zina with each other. He also got her objectionable photographs. The complainant when came to know of the same, his were approached this Court for her restoration.
He alongwith his were went to Superintendent, Darul Aman, who did not allow them to enter the same. They remained outside the gate for some time and saw there Zafar Iqbal coming out of the room. They when went inside to meet their daughter, there they found her objectionable photographs in that room. They both had been committing Zina with each other.
3. It has been contended on his behalf that he has falsely been roped in due to mala fide intention of the complainant because he suspected that he has got filed suit for dissolution of marriage by her daughter against Ahmad Hassan; there was no question of 'their having indulged in Zina in Darul Aman where round the clock many persons remain present; that the story of the F.I.R. Is concocted one and it was found as false and report for cancellation of the same was prepared but the learned Illaqa Magistrate did not agree to the same and he rather directed the police to submit challan in the competent Court; that his co-accused was subjected to medical examination and the doctor in her report has mentioned that she is unmarried girl which havingly suggests that she has not indulged in Zina; that report of Chemical Examiner is also negative and the same also shows that she did not indulge in sexual act; that all these facts render this case as one of further inquiry; that the learned Additional Sessions Judge concerned has not properly attended to all these facts while declining him the relief; that the challan stands submitted in the Court in compliance to the direction of the learned Illaqa Magistrate and in the same, his warrant of arrest stands issued and that is why the necessity arose to him to seek the relief from this Court; and that he is not wanted for any purpose of investigation as the challan stands submitted in the Court.
Conversely, the learned State Counsel has opposed the petition on the ground that he had played the game of hide and seek to the Sessions Court and so his conduct does not entitle him to the extra--ordinary relief of pre-arrest bail; that there are on record some objectionable photographs of him and Mst. Wazir Begum which clearly shows that they had illicit relation and had been committing adultery; that the submission of challan against him in the Court is evidence of existence of prima facie case against him and in such circumstances, he is not entitled to the extraordinary discretionary relief.
5. I have carefully considered the submission made by both the sides with the help of available record.
6. Precisely the allegation against him and his said co-accused is of having indulged in Zina-bil- Raza. There is no denying the fact that the case against them was recommended to cancellation as the said allegation was not found correct in the investigation. The learned Illaqa Magistrate did not agree with the cancellation report and on his direction the challan was submitted in the Court against them and in the same statedly his warrant of arrest has been issued. He due to the issuance of the warrant of arrest has come to this Court to seek the relief.
7. The learned counsel for the petitioner has shown me the medico legal report of his co-accused Mst. Wazir Begum. The doctor in the same has mentioned that she is unmarried girl and her vagina admitted two fingers with difficulty. The report of Chemical Examiner in respect of her vaginal swa bs is that the same are found not stained with semen.
8. So due to the factum of the recommendation of cancellation of the case, the doctor's opinion regarding her to be unmarried girl and the report of her swabs to be negative, his case is covered under subsection (2) of section 497, Cr.P.C. Requiring further inquiry into his guilt.
9. In these circumstances of the case, I accept this petition and confirm the ad interim pre-arrest bail already granted to him subject to his furnishing fresh bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial Court.