' MUHAMMAD JEHANGIR ARSHAD, J.---Petitioner seeks post-arrest bail in case F.I.R. No,230 dated 27- 9-2005 registered at Police Station Kot Samaba District Rahim Yar Khan under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.
2. Briefly the allegation against the petitioner is that he facilitated the abduction of petitioner's wife Mst. Sughran. Bibi at the hands of his brother namely Iftikahr ul Haq with whom she eloped.
3. It is contended by the learned counsel that petitioner has nothing to do with the incident and he being the brother of Iftikhar ul Haq who is at large, has been involved to exert pressure for knowing the whereabouts of Iftikhar ul Haq as well as Mst. Sughran, the alleged abductee; that in terms of section 156-B Cr.P.C. The petitioner could not be arrested without permission from the concerned Court and that offence under section 16 of the Ordinance is punishable with seven years imprisonment only which does not fall within prohibitory clause and in such-like cases grant of bail is principle and refusal an exception.
4. On the other hand, learned counsel for the complainant assisted by learned State Counsel has opposed this petition by arguing that in fact the petitioner prompted the abduction of Mst. Sughran at the hands of his absconding brother Iftikhar ul Haq, knowingly that she was legally wedded wife of the complainant and thus contributed towards commission of the offence and mere fact that said offence does not fall within prohibitory clause does not mean that same is bailable; that although the petitioner was arrested after permission by the concerned Court in terms of section 156-B Cr.P.C. Yet the same is only applicable to a female accused of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
5. Heard. Record perused.
6. Before proceeding to decide this petition on merits, I would like to dispel a wrong impression lurking in the minds of police officers/officials as well as subordinate Courts with regard to enforcement of provisions of section 156-B Cr.P.C. As if the same is applicable to woman accused only. The said impression gained currency by the misleading head-note of said section, whereby the word "woman" has been used, whereas, in fact the said provisions are applicable to all the accused whether male or female, if its context is properly read. Section 156-B, Cr.P.C. Was incorporated in Criminal Procedure Code through Criminal Law Amendment Act, 2004 (Act I of 2005) w.e.f, 11-1-2005 and the same is reproduced as under:- "156-B: Investigation against a woman accused of the 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 Hudood) 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."
(See PLD 2005 Federal Statutes 77)
' Hence, to say that provisions of section 156-B, Cr.P.C. Are applicable to women accused only, is neither correct nor based on proper reading of the said provision. Even the learned Additional Sessions Judge while refusing bail application of the petitioner fell into same error by holding that said provisions was not applicable to the male accused. To support his above view though the learned Additional Sessions Judge has reproduced the said provision of Cr.P.C. In the impugned order but has ignored the context thereof, where it is specifically mentioned "where a person is accused of offence of Zina", which shows that the learned Additional Sessions Judge did not bother to go through the entire text of the said section and was only trapped by the head-note, whereas, it is an accepted principle of interpretation of law that it is the text of the relevant law and not the head-note which is to be followed.
7. As regards contention of learned counsel for the complainant that before arrest of the petitioner permission was obtained from the learned Illaqa Magistrate on 28-9-2005, I have gone through the police file and am struck to see that Navid Kamran Langrial, Illaqa Magistrate of Police Station Kot Samaba while granting permissions of arrest of the petitioner without going through the record and application of independent mind granted permission by just writing the word "allowed' which can neither be construed to be a valid order nor an order passed by a judicial officer. If the said Magistrate had 'bothered to go through the police file before passing the above order, he perhaps would not have been persuaded to pass that order to allow arrest of the petitioner keeping in view the contents of the F.I.R. And the role attributed to him. I am therefore, satisfied that Navid Kamran Langrial, Illaqa Magistrate Police Station Kot Samaba, Rahim Yar Khan failed to perform his duty and also acted in a manner prejudicial to the very spirit of newly-added provisions of section 156- B, Cr.P.C. He .Might also have not gone through the entire text of said provisions of law while granting above permission, may .Be under the wrong impression that same was applicable to women accused only. The said Magistrate is therefore, expected to be careful in future and while passing any order he being a judicial officer is supposed to act not only as a judicial officer but his order should also show that same was passed judicially after conscious application of mind and perusal of the relevant record.
8. Office is directed to send copies of this order to all the learned District and Sessions Judges and District Police Officers within the territorial jurisdiction of Lahore High Court, Bahawalpur Bench and the said Officers shall pass on further instructions to their subordinates to follow the provisions of section 156-B, Cr.P.C. Strictly and in the such type of lapse on the part of any judicial officer or any police officer is brought to the notice of this Court, the defaulter shall not be left unpunished.
9. So far as merits of the case in hand are concerned, although there is allegation against the petitioner that he prompted the abduction of Mst. Sughran at the hands of his brother Iftikhar ul Haq knowingly that she was a married woman, yet there is no allegation against the petitioner of commission of Zina or even attempt to commit Zina. It is yet to be determined whether, per allegations of the F.I.R., the marriage of Mst. Sughran Bibi with the complainant after allegedly contracting her marriage with Iftikhar ul Haq co-accused and her alleged return to the complainant with an undertaking by said Iftikhar to divorce her, was still intact and whether the petitioner played any role in this affair, makes his case one of further inquiry. Moreover, as the offence under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 even if is presumed to be attracted, the same is punishable with seven years, as such does not fall within prohibitory clause and respectfully following the law declared by the Hon'ble Supreme Court of Pakistan in the case "Muhammad Tariq and others v. The State" (PLD 1995 SC 34), this application is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of Illaqa/Duty Magistrate.