2001 P Cr (PLP)

4. Messrs Safirullah Khan, representing accused-petitioner Muhammad Jamal, Pir Fida Muhammad Khan, representing Mst. Shakila accused -petitioner, Salahuddin, representing Mst. Nusrat accused-petitioner, Gohar Rehman Khattak representing Mst. Gulzari accused-petitioner and Raza Khan Muhammad, representing Sajjad accused-petitioner argued that the petitioners are innocent and have been falsely dragged by police in the instant case and there is no evidence to suggest their involvement in the commission of offence.

5. It was further argued that the sections of law are not applicable to the present case. Section 294, P.P.C., is bailable whereas the provisions of section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are not attracted to the case.

6. Mst. Nusrat, Mst. Shakila and Mst. Gulzari are ladies and Mst. Shakila has pregnancy of 6 months. Being ladies they fall under the proviso to section 497, Cr.P.C. and are entitled to grant of bail.

7. It was further argued that neither the statement of the Magistrate who allegedly raided the Guest House was recorded nor the statement of any other independent witness is available on record. The ladies who were allegedly found in the room were also- not medically examined to show that they were the women of easy virtue.

8. Regarding Sajjad accused it was argued that he was Manager of the Guest House. The role attributed to him is that he provided a room to Muhammad Jamal accused-petitioner. There is no evidence to connect him with the commission of offence.

9. On the other hand Mr. Abdur Rauf Gandapur, learned counsel representing the State opposed the grant of bail on the ground that the case is not that of Zina, but section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is fully attracted to the facts of the case and accused Muhammad Jamal was found sitting with two ladies namely Mst. Shakila and Mst. Nusrat accused-petitioners, but being residents of Peshawar had no justification to occupy room in a Guest House. Mst. Nusrat in her statement recorded by the police has stated that she was booked by Mst. Gulzari for a night against a sum of Rs. 5,

000. Mst. Gulzari's case would fall under section 13, whereas Muhammad Jamal's case would fall under section 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and both the aforesaid sections 13 and 14 are punishable with life imprisonment, therefore, their case would fall under the prohibitory clause of section 497, Cr.P.C. Sajjad accused has been charged for providing a room to the accused, but he did not show the actual name of the accused in the Register, who booked a room, therefore, his connivance is obvious. The offences with which the accused-petitioners are charged are very heinous which affect the entire society.

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

11. No doubt the allegation against Muhammad Jamal, Mst. Nusrat and Mst. Shakila is that they were found in a room of "Town Inn" Guest House, but their is no evidence that they were found in objectionable position or were performing any obscene act. The only evidence against them is statements of two constables namely Fazal Wahab and Sabz Ali that they were busy kissing each other, but mere kissing and embracing each other would not fall in the category of attempt to commit Zina. At the most the said act can be said to be intention to commit Zina and none can be punished for mere intention to commit Zina as held in Muhammad Salim and another v. State 1998 PCr.LJ 2321.

12. None of them had put off their clothes and no practical action was performed by accused so as to bring the case of prosecution against the accused-petitioners within the purview of section 18 of the Offence of Zina e (Enforcement of Hudood) Ordinance, 1979. The question as to whether section 18 would be applicable in the case in hand needs further enquiry.

13. The F.I.R. shows that they were busy in gossip when the said room was raided. The accused were not found in a public place performing obscene act. Section 294, P.P.C. is only punishable with 3 months or with fine or with both and is bailable.

14. The prosecution has not bothered to medically examined Mst. Nusrat and Mst. Shakila, who were found in the room in order to establish that they were women of easy virtue.

15. There is also nothing available on record that Sajjad accused was in league with Muhammad Jamal Mst. Nusrat and Mst. Shakila. The only allegation against him is that he supplied a room in the Guest House to the accused. Being Manager of the Guest House it is his duty to give rooms to C the customers. His connivance with the accused is, therefore, not established

16. So far as the case of Mst. Gulzari is concerned, except the statement of Mst. Nusrat recorded by Police Officer that she was booked for Rs. 5,000 for a night, there is no evidence against her. She was produced before Judicial Magistrate but she did not confess her guilt. Even statement of Mst. Nusrat which was given to police is not admissible and has no corroboration on record. There is nothing on record that Mst. Shakila was also supplied by on Gulzari or not. All this makes the case of the accused-petitioners that further enquiry. The challan of the case is complete and accused-petitioners) are no more required for investigation view the above discussion, I admit the accused-petitioners to bail provided each one of them furnishes bail bonds to the tune of Rs. 2,00,000 with two sureties each in the like amount to the satisfaction E of the Judicial Magistrate, Peshawar, who shall ensure that the sureties are local, men of means and reliable. N.H.Q./180/P Bail allowed.