1991 PLP 1324 (MLD)

The petitioner Mst. Tahira Shaukat, who is involved in a case under section 10 of Ordinance VII of 1979, read with section 292, P.P.C. and section 18 of Motion Pictures Ordinance, arising out of FIR No.428, dated 31-12-1990, registered at Police Station Civil Line, Faisalabad, seeks to be admitted to pre -arrest bail. Vide order of this Court dated 16-1-1991, the petitioner was allowed ad -interim pre-arrest bail. Today the case is fixed for confirmation or otherwise of the aforesaid bail order.

2. It may be observed here that the petitioner is not named in the F.I.R. In fact, on seeing the B.F., the complainant discovered that Ziaullah and Mst. Tahira Yasmin, a student nurse of Civil Hospital, Faisalabad, were committing Zina. He accordingly lodged the aforesaid F.I.R. He alleged that administration of the hospital is also responsible for this immoral act.

3. Learned counsel for the petitioner vehemently contended that the petitioner is not named in the F.I.R. lodged by an educated person, namely, Dr. Muhammad Khalecq Nagi. The police, with ulterior motive, recorded the supplementary statement of the complainant the same day at 9.30 p.m. in which, for the first time, the name of the petitioner was mentioned as one of the culprits, the reason being that the petitioner refused to support the false allegations of the complainant against the management of the hospital. He contended that from the bare reading of the F.I.R. it is clear that there is no evidence against the petitioner either under section 10 of Ordinance VII of 1979 or under section 13 ibid, and section 18 of the Motion Pictures Ordinance has already been deleted by the police during the investigation. The only evidence against the petitioner is that of Mst. Tahira Yasmeen, Afshan and Shamshad Akhtar, who allegedly made statements under section 164, Cr.P.C. incriminating themselves as well as the petitioner. Learned counsel submitted that statements of Afshan and Shamshad Akhtar recorded by the learned Magistrate under section 164, Cr.P.C. do not fulfil the requirements of confession as when they made the statements they were not accused of any offence; hence their statements cannot be used against the petitioner under Article 43 of Qanun-e-Shahadat, 1984 being confession of the co-accused. Statement of Tahira Yasmin has been assailed on the ground that it is no confession in the eye of law because according to law confession is an admission made at any time by a person charged with, a crime stating or suggesting the inference that he/she committed the crime; no statement that contains self-exculpatory matter can amount to confession and that any admission which is not connected with any of the ingredients of the offence charged with does not amount to confession. Learned counsel submitted that if the statement of Tahira Yasmin is tested on the touchstone, referred above, if falls short of confession. The only allegation against the petitioner in that statement is that there is a gang of girls which used to send nurses to the principal accused, but no time, date or the amount received has been mentioned in that statement. In the end, learned counsel forcefully contended that the mala rides of the police is manifest from this fact that this Court after admitting the petitioner to ad interim bail directed her to join the investigation and the police in order to involve her under section 10 of the Ordinance, forced her for medical examination from a lady doctor with respect to virginity. In the circumstances, the case against the petitioner is not free from doubt and she is entitled to the confirmation of her ad interim bail, because the police simply want to harass and humiliate her.

4. The learned Law Officer, assisted by the learned counsel for the complainant vehemently opposed this bail application and contended that the petitioner is involved in a heinous and serious crime, as she has been supplying new entrant students nurses from the hospital to the principal accused, Afzal and Ziaullah and as such she is not entitled to pre-arrest bail. According to the learned law officer the petitioner is needed for further investigation, but he has conceded that as Afshan and Shamshad Akhter were arrested after the recording of their statements under section 164, Cr.P.C. therefore, their statements cannot be treated as confession in the eye of law. He, however contended that in view of the confession of Tahira Yasmin that there was gang o1' nurses, who used to send student nurses to the principal accused, hence offence under sections 10 and 13 of the Ordinance, stood proved against the petitioner and her pre-arrest bail order may be recalled.

5. After hearing the learned counsel for the parties and perusing the record, before ascertaining the criminal liability of the petitioner one has to see what is confession in the eye of law. Placing reliance on the aforesaid definition of confession it is clear that the statement of Tahira Yasmin, prima facie cannot be termed as confession in the eye of law, because it is a statement more in exculpatory nature than admission of guilt on her part. Even this statement was recorded by the learned Magistrate without observing legal formalities as contained in Chapter 13 of High Court Rules and Orders, Volume III, which impairs the legal value of the statement. Even if, for the sake of arguments, the statement of Tahira Yasmin is treated as confession, even then, no case under section 13 of Ordinance VII of 1979 is made out against the petitioner, because the alleged confession is of general nature. It does not disclose the date, time and the name of the woman/girl sent by the petitioner for the purpose of prostitution or illicit intercourse to any person or the amount received by her from that person.

6. There is considerable force in the submission of the learned counsel for the petitioner, that no direct evidence is available on the police file, which could connect the petitioner with the offence under section 10 of Ordinance VII of 1979. It appears that the petitioner has been maliciously involved in this case by the police and no useful purpose would be served by recalling the pre-arrest hail order, when she is not required by the police for further investigation, as the challan has since been submitted in the Court.

7. In view of the above discussion, the pre-arrest bail allowed to the petitioner is hereby confirmed. N.H.Q./T-127/L Bail confirmed.