OF REFERENCE ' A case is registered against the petitioner under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The allegation against him is that 4 witnesses, namely, Sardar Ali, his father Mirza Ahmed Ali, brother Akhtar All and one Munir Ahmed actually saw the petitioner committing the offence of Zina with Mst. Kausar. The argument being raised by learned counsel is that according to section 8 of the. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 it is yet to be determined as to whether these alleged eye-witnesses of the occurrence were truthful or not and this could only be done at the trial stage. It is submitted that in that view of the matter the case of the petitioner was of further enquiry at this stage. I have asked learned counsel to show me some case-law on 613 point. He wants time.
2. Notice to the State. Summon the investigating officer alongwith the police record for 28-11-1983.
ORDER OF THE COURT ' In continuation of my order dated 22-11-1983 it is submitted by learned counsel that co-accused of the petitioner, namely, Mst. Kausar has already been admitted to bail by Mr. Justice Muhammad Rafiqe Tarar vide his order dated 5-12-1983 in Cr. Misc. No. 2832-B/1983. The reason for that was that one of the four alleged eye-witnesses, namely, Mirza Ahmed Ali, has given a sworn statement to the effect that he had not seen the occurrence. This Mirza Ahmed Ali who has given an affidavit to that effect is father of Sardar Ali complainant. Learned counsel argues that the prosecution has mentioned the names of four eye-witnesses of the occurrence before whom the offence of Zina is alleged to have taken place and out of these four alleged eye-witnesses one, namely, Mirza Ahmed Ali, has already made a sworn statement to the effect that he had not seen the occurrence. This would leave behind only three eye-witnesses of the accurrence and that, therefore, the case of the petitioner would not fall in the category of Hadd case and could only be considered as a Tazir case and if it is considered as a Tazir case then the punishment prescribed under section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not less than four years and not more than ten years and that in that view of the matter the petitioner would be entitled to the grant of bail. On the other hand, it is argued that if the four alleged eye-witnesses were to support the prosecution version then they have to undergo a test of their being truthful witnesses as required by section 8 (b) of the aforesaid Ordinance which reads as follows :- "at least four Muslim adult male witnesses about whom the Court is satisfied having regard to the requirements of Tazkiyah-al-Shuhoocr that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence."
' There is also a clause under the said section in which "Tazkiyah-al-Shuhood" is described to mean the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness. The contention of learned counsel is that the investigating agency is not granted the power to hold the required test in order to determine as to whether or not such witnesses are truthful. Only the Court is given such power. His argument, therefore, is to the effect that if a case which falls within the category of Hadd of this nature in which four eye-witnesses are mentioned in the F. I. R. Who claim to have seen the commission of crime then the mere mention of the four witnesses would not make out a prima facie case as against the accused persons named in the F.
1. R. Because the four alleged eye-witnesses have yet to pass through a test in order to determine their credibility which only the trial Court is empowered to hold and not the investigating agency. In that view of the matter the case of all accused persons in such circumstances would be considered as of further enquiry. There is substance in the argument of learned counsel. In the present case the co-accused of the petitioner has been admitted to bail because one of the alleged eye-witnesses has already placed an affidavit on the record to the effect that he has not witnessed the occurrence and in any case the credibility of the alleged eye-witnesses of this occurrence is eventually to be determined by the trial Court through the test called "Tazkiyab al- Shuhood' and the investigating agency is not empowered to determine the credibility of the said witnesses. Hence from that point of view it can be stated that the case of the petitioner is that of further enquiry at this stage.
3. In the light of the above discussion the petitioner is allowed bail subject to his furnishing security in the sum of Rs. 10,000 with one surety the like amount to he satisfaction of the Assistant Commissioner, Lahore. This petition stands disposed of.