' Through this single order, I intend to dispose of both the bail petitions as common question of law and facts is involved in both these matters.
2. The petitioners seek post-arrest bail in case F.I.R. No.31 dated 30-1-2005 registered under sections 13/14 of Offence of Zina (Enforcement of Hadood) Ordinance No.VII of 1979 read with section 109, P.P.C. At Police Station, Sabzi Mandi, Islamabad on the grounds that petitioners Zakar and Mst.
Fouzia are husband and wife. Both married in the year 2,000, copy of Nikah Nama is placed on the file; that the police has wrongly involved the petitioners with mala 'fide intention and that the case of the petitioners falls outside the prohibitory clause of section 497, Cr.P.C.
3. On the other hand, learned counsel for the State has opposed the grant of bail.
4. Arguments heard. Record perused.
5. Admittedly, the case falls within the purview of section 10(2) of Offence of Zina (Enforcement of Hadood) Ordinance No.VII of 1979. An amendment has been introduced in Criminal Procedure Code by addition of section 156-B through Act I of 2005 Criminal Law (Amendment) Act, 2004 published on 11-1-2005 in Gazette of Pakistan.
156-B, Cr.P.C. Against a woman Offence of Zina.
"Notwithstanding anything contained in this Code, where a person is accused of Offence of Zina under the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (VII of 1979), no police officer below the rank of a Superintendent of Police shall investigate such offence nor shall such accused be arrested without permission of the Court.
' Explanation:-In this section Zina does not include "Zina-bil-Jabr" ."
6. Bare reading of the above section shows that a police officer not less than a Superintendent of Police shall investigate such an offence nor shall such accused be arrested without the permission of the Court, where a person is accused of offence of Zina.
7. The word person has not been defined either in the Amending Act or in the Criminal Procedure Code. Section 4 of the Criminal Procedure Code in its application to person under heading words to have same meaning as in Pakistan Penal Code reads as under:-- "All words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined, shall be deemed to have the meaning respectively attributed to them by the Code."
8. The word person has been defined under section 11 of the Pakistan Penal Code, 1860:-- "person" includes any company or Association, or body or person, whether incorporated or not."
9. In section 2 of the Pakistan Penal Code, 1860 in relation to punishment of offences committed within Pakistan.---it is provided that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within Pakistan.
10. The word person used hereinabove has been interpreted in Mobarik Ali Ahmad v. The State of Bombay PLD 1958 SC (hid.) 115; as all persons without limitation and irrespective of nationality, allegiance, rank, status, caste, colour or creed.
11. In Chambers English Dictionary the word person is defined as under:-- "Person:---a living soul or self-conscious being a personality; a human being, in composition used instead of man to avoid illegal or unnecessary discrimination on grounds of sex e.g. Bar-person, chairperson, post-person."
12. In Concise Oxford Dictionary the word person is defined as under:-- "Person---individual human being (a cheerful and forthright person; living body of human being (he had a fine person; attracted by her fortune, not her person).
13. In Black's Law Dictionary the word person is defined as under:- "Person:---In general usage a human being (i.e. Natural person), though by statute term may include a firm, labour organization, partnerships, associations, corporation, legal representatives, trustees, trustees in bankruptcy or receivers."
14. The person mentioned in section 156-B, Cr.P.C. Is of wider import and cannot be assigned restricted meaning. It includes a man and woman both.
15. The investigation has not been conducted by Superintendent of Police. arrest were made without permission of Court in clear violation of the newly-added provision of law. The petitioners are entitled to grant of bail on this score alone.
16. As to the merits of the case the complainant S.-I. Claims to have obtained search warrant on 29-1-2005 and after constitution of a raiding party raided the house on 30-1-2005 at 5-30 a.m.
Morning. Call bell was pressed. Zakar petitioner opened the door and on seeing the police party tried to shut the door but was overpowered by the police officials. On search of the rooms they found petitioners Shafa Batool and Ayaz Khan in one room and Mst. Fauzia Bibi and Ghazi Khan in another room. No mention is made in the F.I.R. Of petitioners having undressed themselves and were indulging in commission of Zina. Mere presence in one room is not proof of commission of offence. Petitioner No.1 and petitioner No.3 are husband and wife. Sufficient incriminating evidence is not available against the petitioners at the present.
17. For what has been stated above, both the petitions are allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.