Haziqul Khairi, C.J.--By this revision petition, the petitioners Amjad Farooq and Mst. Aaliya have impugned the order dated 20-9-2006 passed by learned Additional Sessions Judge, Kamalia, District Toba Tek Singh whereby he dismissed the petitioners' application under Section 265-K Cr.P.C.
2. Briefly the facts of the case are that complainant Muhammad Akhtar Saeed, Sl/the then SH0, Pirmahal lodged an F.I.R. that on 21-32006 at about 1.00 a.m. (mid-night) he alongwith other police officials were patrolling at Bypass Bhussi Road, Pirmahal when they received information that some men and women were busy in committing Zina and also taking liquor in a Cotton Factory near Petrol Pump at Chak No. 671/GB, Tehsil Kamalia. It was also reported that the gate of Cotton Factory was open and these persons could be seen drinking and committing zina from the pacca road passing nearby. On receiving the information, he alongwith other police officials reached the said Factory wherein they saw three women and three men including the petitioners busy in commission of Zina while the remaining were drinking and waiting for their turn to commit Zina. The petitioners namely Amjad Farooq and Mst. Aaliya alongwith other co-accused were apprehended on the spot alongwith liquor. No search warrant was obtained by the complainant (SILO.) from Illaqa Magistrate to conduct the raid.
3. Thereafter the Investigating Officer submitted his Report under Section 173 Cr.P.C. against the accused on the basis of which charge was framed against the accused. Medico legal examination of the female accused was conducted without their consent and without the order of Magistrate.
4. In these circumstances, an application was filed by the petitioners under Section 265-K Cr.P.C. for acquittal on the ground that the petitioners are husband and wife. Further according to Section 156B Cr.P.C., the arrest of the petitioners could not be made without the order of the Court and no police officer below the rank of Superintendent of Police was empowered to carry out investigation.
Learned trial Judge dismissed the petitioners' application stating as follows:-- "The, bare perusal of FIR shows that the police party from where, caught red handed the petitioners alongwith others while committing zina and drinking, place of occurrence was a cotton factory not running and having a main gate opened towards the road. The Cotton Factory is not residence of any person and even the factory has been closed for the business. As far as the plea of counsel for the petitioners concerned about nikahnama, the 'judicial file as well as police file do not show that the said nikahnama was even produced at the time of raid or during investigation and no doubt these are produced at the time of bail stage or at the time of hearing the application u/S. 265-K Cr.P.C. No doubt the bail was granted to the petitioners on the basis of nikahnama but the bail order is a tentative assessm ent of facts. Learned State counsel has seriously challenged the nikahnama and stated it to be a fabricated document prepared after the occurrence or it was fabricated. Nikahnama can be produced even in the Court during the trial/evidence. The last contention of the counsel for the petitioners was that the case was not investigated by SP rather it was investigated by Sl, no doubt the case has been investigated by an SI but what will be its effect which has to be seen during the trial as to whether it is an irregularity or illegality."
5. According to learned counsel for the petitioners, the impugned order on the face of it suffers from gross illegalities and is in violation of mandatory provisions of law. He referred to Section 156-B Cr.P.C. which reads-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 Zina under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), no Police Officer below the rank of Superintendent of Police shall investigate such offence nor shall such accused be arrested without the permission of the Court."
A bare reading of Section 156-B Cr.P.C. makes it abundantly clear that the provisions, contained there in are mandatory, firstly because as and when there is accusation against a woman for Zina, investigation has to be carried out by a Police Officer not below the rank of Superintendent of Police. This is a condition precedent arising out of an accusation of Zina against a woman (not Zina-bil-jabr) and under no circumstances could be overlooked. Investigation is defined in Section 4 of the Code of Criminal Procedure as under: "Investigation: 'Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than Magistrate) who is authorized by a Magistrate in this behalf. Pursuant to such investigation, no accused person shall be arrested without the permission of the Court."
It is also pertinent to note that the word 'person' used in Section 156-B Cr.P.C. is not defined in Code of Criminal Procedure. However, under Section 11 of Pakistan Penal Code the word 'person' includes any Company or Association or body or person, whether, incorporated or not. Thus the word 'person' includes not only artificial persons or some other legal entity but also natural persons i.e. man or woman, male or female. In case of Zina, only natural persons are involved and thus no investigation whatsoever if carried out by a Police-Officer below the rank of Superintendent of Police would be a nullity in law. What may further be added here is that Section 156-B Cr.P.C. is a deviation from and an exception to Section 4 thereof wherein a Magistrate is vested with power to investigate himself or he may authorize a police officer to investigate a crime. This special provision will override the general provisions of Section 4 of the Cr.P.C.
6. Secondly it is also the case of the petitioners that they were arrested in clear violation of mandatory direction under Section 156-B of the Cr.P.C. which contemplates that no accused shall be arrested without the permission of the Court. Since admittedly no such permission was, obtained by the Court, the arrest of the petitioners was abinitio illegal as well.
7. Lastly it was contended by Mr. Mushtaq Ahmad Mohal, learned counsel for the petitioners that the petitioners are married to one another. While raising this plea, they had filed before the learned trial Court certified copies of Nikahnama, affidavits of the father and brother of Mst. Aaliya, Petitioner No. 2 and two other witnesses to Nikah namely Abdul Jabbar and Zulfiqar testifying that Nikah was performed between the petitioners on 28-8-2005 much before lodging of F.I.R. by SI/SHO Muhammad Akhtar Saeed on 21.3.2006. Here also the trial Court without applying its mind to the overwhelming evidence on record dismissed the petitioner's plea and proceeded with the trial of the case. Learned counsel placed reliance on the case of Muhammad Azam Vs. Muhammad Iqbal reported in PLD 1984 SC 95 in which inter alia it was held that if evidence and material regarding Nikah be of high quality, incapable of admitting any doubt, the dispute as to its validity may be referred to the Family Court. In the present case, the learned trial Court completely overlooked this aspect and failed to apply its mind while dismissing the petitioners' application under Section 265- K Cr.P. C .
8. I accordingly allow the Revision and set aside the impugned order dated 20-9-2006 of the learned Additional Sessions Judge, Kamalia, District Toba Tek Singh.