2005 PLP 1716 (YLR)

2. According to the F.I.R., the complainant contacted Karamat Ali, owner of a Movie and Video Shop. The complainant asked him to give a Punjabi film. The accused Karamat gave him a CD which was played by the complainant at his residence. In the said film petitioner was picturised committing zina with co-accused Muhammad Asif and Shahzad Rehman, obscene scenes were shot on the petitioner and co-accused.

3. The learned counsel for the petitioner submits that the petitioner has been behind the bars since 15-2-2005. She has a suckling baby.

4. On the other hand, the learned counsel for the State submits that the petitioner stands nominated in the F.I.R. The offence alleged against her falls within prohibitory clause of section 497, Cr.P.C.

5. I have heard both the learned counsel for the parties. The contents of F.I.R. disclose that complainant had obtained a film on rent from the shop of co -accused Karamat Ali. When the complainant exhibited the said film at home, he saw petitioner in the said film naked and committing zina with co-accused Muhammad Asif and Shahzad Rehman. In other words the petitioner committed Zina for making the said film or movie hence liable to be tried under Hudood.

6. The facts of instant case are unusual and different from routine cases registered under Hudood Ordinance. To constitute offence under section 10 of the Hudood Ordinance, witnesses are required to witness the actual commission of offence. Witnessing zina by playing a film on a VCR, etc. does not fulfill standard requirement of evidence under Qanun-e -Shahadat order and offence of Zina (Enforcement of Hudood) Ordinance-VII, 1979, to charge under section 10 of Hudood Ordinance. Similarly, section 12 of the Ordinance is attracted when a person kidnaps or abducts any person for subjecting him to the unnatural lust, etc. section 13 of the Ordinance is attracted when a person is sold or let or hired for the purpose of prostitution or illicit intercourse with any person or for any unlawful or immoral purpose. The F. I. R. does not show that the film was sold by any person or was let or hired by any person. Likewise, section 14 of the Ordinance is attracted when somebody buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose. The F.I.R. does not show that any particular person had bought the petitioner or hired the petitioner for the above purpose. The F.I.R. simply says that the complainant watched a movie wherein obscene scenes were picturised on the petitioner along with other two co-accused. Who made the said film or who hired the petitioner for the purpose is not disclosed or mentioned in the F.I.R., what to talk about recording of their statements.

7. Under Article 71 of Qanun-e- Shahadat Order, 1984, oral evidence must be direct. For example, under Article 71 of the Qanun-e-Shahadat Order, if the evidence refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. In the instant case complainant saw the movie with another person namely, Munawar Ali Shah, they did not see the actual commission of offence of zinc. In a recent judgment reported as Rehmat Shah Afridi v. The report State PLD 2004 Lah. 829, a Division Bench of this Court held that the tape recorded conversation can be proved by the testimony of person who was any conversation or who recorded the conversation. It may be pointed out that in the reported case audio and video cassettes were relied and believed by the Court as evidence because the person who recorded the cassettes was produced and his statement was directly recorded, which is missing in the instant case. The F.I.R. does not show names of those persons who recorded or picturised the film or hired the petitioner for producing the film; or in other words saw petitioner committing offence of Zina with her co-accused. The Hon'ble Supreme Court held that transcript of speeches made by certain political leaders were admissible evidence because the persons hearing the speeches and making notes of the speeches were examined and they had proved the transcripts prepared by themselves. The Court expressed on the value of recorded tapes, as under:-- "So far as tape records of speeches of some of the N.A.P. leaders are concerned they stand on firmer ground. They are actual record of the speech as and when it was made. The officer recording the speech has been produced. He has produced the necessary tape and the tapes have been placed in the Court. The officer concerned has identified the voice of the, person speaking. Therefore, we see no reason not to accept these reports." (Islamic Republic of Pakistan v. Abdul Wali Khan, PLD 1976 SC 57). The contents of the instant F.I.R. or the evidence mentioned in the F.I.R. do not fulfil the requirements mentioned in the judgment of the Hon'ble Supreme Court as pointed out above.

8. Another important aspect of the story of the F.I.R. is that nowadays it cannot be said with certainty that a person shown in a film or in a picture is the same original person. Different tactics in the photography, particularly, after introduction of computer are employed to blackmail people which is a well-known fact of the today's society. Therefore, allegations levelled in the instant F.I.R. cannot be taken seriously unless they are supported, verified and testified on the lines mentioned in above two reported cases even at the bail stage. Article 9 of the Constitution guarantees life and liberty save in accordance with law. Therefore, a citizen cannot be deprived of his liberty on grounds or allegations like made in the instant F.I.R.

9. The petitioner and co-accused have also been booked under section 18 of the Motion Pictures Ordinance, 1979. This section provides penalties and procedure for those who exhibits or causes or permits to be exhibited in any place, or abets the exhibition of any film which has not been certified by the Board or whoever exhibits a film without lawful authority or who fails to comply with the provisions of section 5 of the Ordinance, etc. Additionally, section 18(5) further provides that no Court shall take cognizance of an offence except upon a complaint in writing made by the Board or the licensing authority or persons authorized by any of them. I wonder how this section could be attracted in the facts and circumstances of the present case?

10. Beside, the above grounds, the petitioner is a woman and also stated to be mother of a suckling baby. The learned counsel for the State has also endorsed the above fact. Section 497, Cr.P.C. itself indicates leniency towards women regarding granting bail.

11. Hence, in view of peculiar circumstances mentioned above and reasons discussed above, this bail application is allowed subject to furnishing of surety bonds of Rs.50,000 with one surety in the same amount to the satisfaction of the trial Court. H.B.T./N-40/L Bail granted.