1994 P Cr (PLP)

Muhammad Iqbal for the State. Date of hearing: 12th October, 1993, The petitioners who are involved in a case under section 10 of Ordinance VII of 1979 and under Article 4 of Prohibition Order IV of 1979, arising out of F.I.R. No.151, dated 6-8-1993, registered at Police Station B- Division, District Gujrat, seek to be admitted to bail.

2. Briefly the allegation against the petitioners as per F.I.R. is that on spy information a raid was conducted and they were found committing Zina with Mst. Jamila and Mst. Zarina.

3. Learned counsel for the petitioners contended that the police raided the house of the petitioners without complying with the provisions of section 165, Cr.P.C., so the investigation is tainted with malice and is not in accordance with law. He further contended that the police could not arrest the petitioners under the Prohibition Order without obtaining any warrant from the Magistrate as provided by Article 16 ibid. In the end, he submitted that the story given in the F.I.R is highly fantastic and unbelievable because the police in order to show their efficiency roped in the petitioners in this case falsely. Even the police officials did not mention the names of the persons in the F.I.R. who were found committing Zina at the said place, hence in the presence of this material, the case against the petitioners is one of further inquiry and they are entitled to bail.

4. The learned counsel for the State conceded this legal position that according to Article 16 of the Prohibition Order the offences punishable under Articles 4, 8 and 11 are cognizable only if committed at a public place. In the present case, the alleged offence was committed in the private house, hence the police was not justified to raid the premises. The learned counsel for the State anyhow, vehemently contended that the Police Officials had no personal enmity against the petitioners to involve them falsely in this case, so there exist reasonable grounds to believe that the petitioners are involved in a case which falls within the prohibitory clause.

5. I have heard the learned counsel for the parties and perused the record.

6. Admittedly, there is no material on the record to justify the raid in the eye of law conducted by the police at the house in the odd hours of the night because there is no corresponding entry in the Police Register as required by section 165, Cr.P.C. that some cognizable offence is being committed in the house and the police cannot obtain search-warrant from the Magistrate without any delay. There is great force in the submission of the learned counsel for the defence that the version given in the F.I.R. is highly improbable and fantastic because police officials even could not mention the names of the couples who were found in the house indulging in Zina as asserted in the F.I.R. In the presence of this material, the case against the petitioners seems to be one of further inquiry and they are admitted to bail provided they furnish bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety each in the like amount to the satisfaction of the A.C., Saddar Gujrat. N.H.Q./A-553/L Bail granted.