Hameedullah, complainant, lodged a report at Police Station, Ghoriwala, Tehsil and District Bannu, on 2-6-1989, alleging that his wife, Mst. Dil Nazira has been abducted by Mumtaz Khan petitioner with the connivance of her father, Gul Faraz Khan alias Khan, with an intention to commit Zina with her. The accused and the abductee were alleged to have been recovered from a house situated in Doctor Jehanzeb Street, Bannu City, on 3-7-1989 and thereafter a case under sections 5 and 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against both of them, vide F.I.R. No-119, dated 3-7-1989. The medical examination of the abductee revealed that she had 10/12 weeks old pregnancy. She has made a confessional statement before a Magistrate of First Class, Bannu, wherein she has allegedly implicated the petitioner for committing sexual intercourse with her during the period from 2-6-1989 to 3-7-1989.
2. It may be stated that this bail application was jointly moved on behalf of Mst. Dil Nazira and the petitioner but the bail has only been pressed for the petitioner and the learned counsel was allowed to withdraw from the case in so far as the bail plea of Mst. Dil Nazira was concerned. Both the accused had separately applied for their release on bail before the learned Sessions Judge, Bannu, who by his single order, dated 5-10-1989 refused bail to both of them. Hence this petition.
3. Mr. Dost Muhammad, the learned counsel for the petitioner, on the authority of Muhammad Naseer v. State PLD 1988 FSC 58, contended that the confession to be effective in respect of Ordinance VII of 1979 must be recorded by a Court of competent jurisdiction, and since it has not been so recorded in the case in hand, therefore, the so-called confessional statement recorded by the Magistrate First Class is of no evidentiary value. The learned counsel further submitted that from the medical evidence if the period is reckoned back, the possibility of her having conceived from her own husband could not be ruled out. He lastly submitted that the possibility of false charge on account of differences between the spouses could not also be ignored.
4. As against this, Mr. Ejaz Muhammad Khan, the learned Assistant Advocate-General, urged that even if on the authority of Muhammad Naseer cited at the bar the confessional statement made by the abductee was ignored, still it would be a statement of prosecution witness recorded under section 164, Cr.P.C. And would carry evidentiary value in so far as the involvement of the petitioner in the offence of Zina is concerned. He further maintained that the allegations in the F.I.R. Are supported by the arrest of the accused-petitioner and the abductee from the house situated in Doctor Jehanzeb Street, Bannu City; her pregnancy of about 10/12 weeks duration and the assertion of the abductee that the complainant was impotent.
5. A Full Bench of Federal Shariat Bench in Muhammad Naseer's case, cited at the bar, have exhaustively dealt with the proposition as to whether the confession to be effective in respect of Ordinance VII of 1979 must be recorded by a Court of competent jurisdiction to try the offence or by any Magistrate of First Class or Court and enunciated the following rule:-- "It will be seen that trial of the offence of Zina has to be undertaken only by a Sessions Court as laid down in the second proviso to section 20 of the Ordinance VII of 1979 and the jurisdiction of a Magistrate has been expressly excluded. Any statement before a Magistrate, therefore, is not a confession under section 8(a) of the Ordinance VII of 1979 and, therefore, has no legal effect."
6. Respectfully following the dictum of the Federal Shariat Court, it is reiterated that a confession to be effective in a case under Ordinance VII of 1979 must be recorded by the trial Court, as laid down in the second proviso to section 20 of Ordinance VII of 1979, and that a Magistrate would not be competent to undertake this exercise. In consequence, any statement recorded by a Magistrate would not be a confession under section 8(a) of the Ordinance and, therefore, would have no legal effect.
7. The allegation of the prosecution that the abductee and the petitioner have been arrested from a house other than the house of her married sister where, according to her, she had been living after leaving the house of her father/husband needs further probe. There is also a scope of further inquiry into the question as to whether the complainant was impotent or was capable to perform sexual act, in that he has not been subjected to medical examination I on this point. The prosecution's case that it was Mumtaz Khan petitioner from whom the abductee had conceived is also one of further inquiry. The question, therefore, that Mst. Dil Nazira got pregnant as a result of cohabitation with her husband or with the petitioner also needs elaborate inquiry. The petitioner is in jail for the last over 9 months without trial. In these circumstances, I am inclined to allow this petition. The petitioner is accordingly allowed bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties each in I the like amount to the satisfaction of Assistant Commissioner, Bannu.