While hearing a post arrest bail application on Thursday Justice Ms.Mussarat Hilali of the Peshawar High Court made it clear to police that no cop is allowed to conduct body search of woman accused under any circumstances saying provisions of criminal law only authorize to female police to search body of an accused woman.
A single-member bench of the Justice Mussarat Hilali observed that under the Code of Criminal Procedure, a woman was entitled to ‘special treatment’ regarding body search. “Section 52 of the CrPC provides that whenever it is necessary to cause a woman to be searched, the search should be made by another woman with strict regard to decency.
“Under no circumstances, male police personnel shall actually touch the person of a woman for making search or arrest,” said the Justice Hilali. The bench made the order while accepting bail application of a woman suspect, who was arrested by the officials of Pishtakhara police station on September 6, 2021, on the charge of narcotics smuggling. The bench granted bail to the applicant subject to furnishing two surety bonds of Rs100,000 each.
After apprehending the accused woman under charges of smuggling heroin the local police registered an FIR under Section 9-D of the Khyber Pakhtunkhwa Control of Narcotics Substance Act. The police had alleged that they had seen the petitioner stand on the roadside on the Ring Road in Peshawar with a shopping bag in her hand and that the search led to the seizure of 3,280 grammes of heroin in the bag.
Appearing before the bench, counsel for the applicant Umer Zafran contended that his client was falsely implicated in the case saying the applicant was six weeks pregnant and was a mother of three children. He argued that on record, there was no female constable with the police team which claimed of recovering contraband from her possession. He added that the petitioner was arrested on Peshawar’s Ring Road which was a busy public place without a female constable.
The bench observed when the petitioner was searched by police on public road in presence of all male police personnel, the norms of decency could not have been observed. “The raised question how the applicant, who is pregnant of six weeks, was searched on road side where there no prior information of her being involved in trafficking narcotics,” Justice Hilali remarked.
Expressing grave concern over the accused woman custody in male cops for three long hours after arresting her in the matter the bench observed saying, “It has also been noticed with great concern that though the FIR was registered against the petitioner at 1650 hours but she was sent to Women Police Station at 1950 hours after a delay of three hours during which she remained in exclusive male police custody as no female constable is shown to have been associated with the proceedings,”. The bench also pointed out that despite the lapse of 65 days, the prosecution had failed to produce the Forensic Science Laboratory report of the contraband allegedly recovered from the petitioner.
After granting bail to the applicant in the matter, Justice Hilali expressed dismay over police conduct in the case saying the situation was extremely intolerable, undesirable and against the statutory and executive directions.
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