1991 P Cr (PLP)

Mr. M.I. Memon, the learned Advocate for the applicant has contended that the bare reading of the F.I.R. would show that no offence under section 13 or 14 of the Zina Hudood Ordinance is made out. According to him, section 13 of the said Ordinance provides for selling persons for the purpose of prostitution etc., while section 14 of the said Ordinance provides buying persons for the purpose of prostitution etc. In the instant case, according the learned Advocate, there is no evidence worth the name, that any body at the said flat was selling persons for the purpose of prostitution as provided under section 13 or for buying persons for the purpose of prostitution as provided under section 14 of the Ordinance. He has contended that the mere presence of the applicant and the respondents Nos.2 to 8 at Flat No.A/6, Momin Square would not lead to an inference that the said persons had gathered there for the purpose of prostitution. The learned Advocate has contended that the Sessions Judge (East) Karachi was not justified in rejecting the application for the acquittal of the applicant under section 265-K of CF.P.C. It is also contended by the learned Advocate for the applicant that the whole case consists of the evidence of Inspector Mohib Ali, the two Mashirs Taj Muhammad and Muhammad Shari and an estate agent Shoib Muhammad. The two Mashirs Taj Muhammad and Muhammad Shafi had been called to act as Mashirs when the raid was conducted and they have neither said, nor they could say that the applicant and others had gathered at the flat for the purpose of prostitution. Referring to the statement of the P.W. Shoib Muhammad recorded under section 161, Cr.P.C., the learned Advocate had pointed out that it was this Shoib Muhammad, who had acted as an estate agent while the flat in question was taken on rent by one Mubinur Rahman, husband of Mst. Nighat Sultana. Even his statement does not lead to an inference that the charge of selling or buying persons for the purpose of prostitution could be established. The learned Advocate for the applicant has also argued that if the flat in question was being used by the tenant Mubinur Rahman or his wife Mst. Nighat Sultana as a den for the purpose of prostitution, no one from the neighbours was called by the police to act as a witness to prove such allegations. The sum total of the arguments of the learned Advocate for the applicant is that in such circumstances the continuation of the proceedings before the trial Court would not only amount to abuse of the process of law but would also amount to undue harassment to the accused. He has referred to the provision of section 265-K of the Cr.P.C. and has tried to show, from the facts of the case that since there was no probability of the accused being convicted of the offences under section 13/14 of the Zina Hudood Ordinance, the learned Trial Court should have allowed the application under section 265-K, Cr.P.C. He has prayed that since the trial Court has not applied its mind judicially to the facts of the case and the law referred in this behalf, this Court exercising its powers under section 561-A, Cr.P.C. may quash the entire proceedings. In support of his contentions the learned Advocate has placed reliance on the following judgments:-- (1) Ashiq Hussain and others v. State 1984 P Cr. L J 930, (2) Asif Mehmood v. State 1987 P Cr. L J 896, (3) Ch. Muhammad Ashraf v. State 1990 P Cr. L J 347, (4) Mian Muhammad Anwer and others v. Mian Muhammad Waqar Mono and another 1990 P Cr. L J 353, (5) Muhammad Iqbal and 2 others v. State PLD 1986' Pesh. 16, (6) Mst. Sultana Begum v. Muhammad Usman and others .1987 P Cr. L J P.957; 1050 and unreported judgment of this Court in Nisar Mehdi Ali Khan v. State Criminal Miscellaneous Application No. 226 of 1989. The learned Advocate for the applicant relying upon the above-quoted judgments has lastly contended that there is no probability of the applicant or the co-accused being convicted for the offences under section 13/14 of the Zina Hudood Ordinance and the continuance of the proceedings before the Trial Court would be an abuse of the process of law and as such no purpose will be served if the said accused are tried and dragged for indefinite period. He has prayed for the quashment of proceedings. Mr. Raja Qureshi, Advocate for the respondents 2, 4 to 8 has adopted the same arguments as are advanced by the learned Advocate for the applicant. He is also of the view that the proceedings may not be allowed to continue and the same be quashed. It is relevant to mention here that these respondents are also the co-accused with the applicant and apparently their interest in the present Petition is identical to that of the applicant. Mr. Salman Ansari, the learned Advocate for the State has supported the contention of the Advocate for the applicant and the private respondents and has stated that he does not support the order dated 27-5-1990 passed by the learned Sessions Judge (East) Karachi, and is of the view that the proceedings need to be quashed. He has frankly stated that in order to prove the offences under section 13/14 of the Ordinance some persons from the neighbourhood of the flat in question ought to have been examined who could have testified that the occupants of Flat NoA/6, Momin Square, Second Floor, were using the said premises as a den for the purpose of prostitution or that they had been seeing strangers coming to the flat at different times. According to the learned State Counsel, such evidence not having been collected by the investigating agency no case under section 13/14 of the Ordinance was made out. It is an admitted fact that the Flat NoA/6, IInd Floor, Momin Square, was in occupation of one Mobinur Rahman and his wife Mst. Nighat Sultana, tenants, therein, the tenancy having been created though the estate agent Shoib Muhammad shown as a witness in the case. It is also an admitted position that the applicant and 7 others mentioned above including Mst. Nighat Sultana were found present at the said flat when raid was conducted by the police. Whether or not these persons, though they were strangers to the said flat, were collected there for the purpose of prostitution would be the point to be considered and for that one has to see the probable evidence that could be adduced at the trial by the prosecution. The case of the prosecution rests upon the evidence of the S.H.O., himself, the two witnesses acting as Mashirs, Taj Muhammad and Muhammad Shaft, and the evidence of the estate agent Shoib Muhammad. If their statement is taken to be true, even then no offence under section 13/14 of the Ordinance is being made out. The whole case has been based on presumptions. It is presumed that the presence of various persons, men and women was for the purpose of prostitution. The witness Shoib Muhammad, whose statement under section 161; Cr.P.C. has been placed on record has stated before the Police that he had given the flat to Mubinur Rahman on rent. He has stated in his such statement that after a few days thereafter, a shopkeeper had told him that Mubinur Rahman and his wife were running a prostitution den. In order to verify such allegations, this witness kept vigil on the flat and had found different men and women coming to the flat and hence he gave notice to Mubinur Rahman to vacate the flat. It seems that it is this witness only whose statement is made a basis for presuming that the accused had gathered at the flat for the purpose of prostitution. If the statement of Shoib Muhammad is taken to be true, then the Police ought to have examined some witnesses of the neighbourhood who had complained to Shoib Muhammad about the frequent visit of the strangers, men and women who were unconcerned with the flat. From the evidence which the prosecution might attempt to adduce at the trial and as is referred to above, it could hardly be said that the applicant and the co-accused could be convicted of offences under section 13/14 of Zina Hudood Ordinance. I have perused the impugned order and seen the reasons given by the learned Sessions Judge (East) Karachi, for rejecting the application under section 265-K, Cr.P.C. It is observed by him that the charge in the case had not yet been framed because one of the accused Mubinur Rahman was absconding and that it was a premature stage for acquitting the accused. These reasons according to me could not be made the basis for rejecting an application for the acquittal of the accused under section 265-K, Cr.P.C. The learned Sessions Judge (East) Karachi, has referred to the case-law cited by the Advocate for the applicant before him, and has simply said that the said law is distinguishable on facts and cannot be applied at this preliminary stage. Such observations of the learned Sessions Judge (East) Karachi, without discussing each judgment cited before him, amounts of not having applied his mind judicially. He should have discussed the facts of each judgment referred, and distinguished it from the facts of the case before him. I would, therefore, take up each judgment referred by the learned Advocate for the applicant, while deciding the present quashment application. 1984 P Cr. L J 930, is the judgment in a bail application where the petitioners were charged were offences under sections 10/13/16 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance. It is observed in the said judgment that there was no mention in the F.I.R. regarding selling or buying person or female co-accused for sinful purposes and no one witnessed the petitioners committing or attempting to commit Zina with their female co-accused, but she was seen sitting in the lap of one of petitioners and other petitioners were playing with her breast. In such circumstances the case was found fit for further enquiry and bail was allowed to the petitioner. It is also observed that as for offences under section 13/14 of the Offence for Zina (Enforcement of Hudood) Ordinance, there were no allegations in the F.I.R., of selling or buying Mst. Anjuman for the purpose mentioned in the sections. In 1987-P Cr. L J 896, the offences with which the petitioners in that case were charged were offences under sections 109/420/467/468 and

471. The petitioners were being tried under Banks (Special Courts) Ordinance of 1984. In this judgment, application under section 561-A, Cr.P.C., was under consideration before the High Court of Lahore and it has been held that the Special Court could appraise evidence proposed to be produced at Trial and could also consider uncontroverted documentary evidence proposed to be produced by accused while exercising powers under sections 249-A and 265-K of Cr.P.C." It is also observed that the Court should make an appraisal of the evidence proposed to be produced in the case and come to the conclusion on the basis of the such evidence that there is no likelihood of the accused being convicted. The proceedings pending against the petitioners were quashed and the petitioners were acquitted. In 1990 P Cr. L J 347, this Court ordered the quashment of proceedings under section 561-A, Cr.P.C. and it has been observed that "the Magistrate if acting judicially comes to conclusion that no criminal offence is made out he can acquit accused under section 249-A, Cr.P.C. even before charge is framed". The offence with which the accused Ch. Muhammad Ashraf was charged in that case was under section 13-D of Arms Ordinance, 1965. It is also observed in the said judgment that though ordinarily the High Court will not interfere at an interlocutary stage of a criminal proceedings pending in a subordinate Court, it will certainly interfere in order to prevent harassment to a person who is prosecuted on a charge which on the face of it is groundless. It is also observed that the test to be applied is to see whether allegations even if taken at their face value do not constitute an offence as alleged. In 1990 P Cr. L J 353, a judgment of this Court, a similar view has been taken as in the earlier judgment and the proceedings pending against the petitioners Mian Muhammad Anwer and others, under section 448, P.P.C. were quashed and while disposing of the quashment application the Court observed that "the powers under section 561-A, Cr.P.C. are to be sparingly exercised, but if the Court is satisfied that proceedings are an abuse of the process of Court, powers should be exercised with a view to protect innocent persons from undue harassment." In P L D 1986 Pesh. 16, the proceedings against the petitioners Muhammad Iqbal and 21 others pending before a subordinate Court under sections 107 and 1.51, Cr.P.C. were quashed. It was observed that the Magistrate before whom the proceedings under sections 107 and 151, Cr.P.C. were pending has not satisfied himself on the basis of reliable material in support of the report made to him by the police while passing order under section 112, Cr.P.C. but had issued the notice drafted by the District Authorities of Peshawer, according to the dictates of their own head without taking help from the law and procedure. In 1987 P Cr. L J 957, an order under section 265-K, Cr.P.C. passed by the Sessions Judge, was upheld. In 1987 P Cr. L J 1050, also a similar view has been taken that in absence of a likelihood of conviction, the accused were ordered to be acquitted. It tray be stated that the acquittal of the accused under sections 249-A and 265-K, Cr.P.C. was ordered by the High Court. In Criminal Miscellaneous No.226 of 1989, an unreported judgment of this Court, the proceedings pending against the applicant Nisar Mehdi Ali Khan before the Special Judge Customs Karachi, were quashed and it was held that since there was no evidence against the applicant except the word of absconding co-accused, proceeding with the case would be an exercise in futility. From the case-law discussed above it is quite clear that the offences under section 13/14 of the Zina Hudood Ordinance, with which the applicant and co-accused are charged, cannot be proved at the trial, as there is no evidence worth the name to connect them with the alleged offences. There is no evidence with the prosecution that the applicant and his co-accused were selling persons for the purpose of prostitution or buying persons for the said purpose. The whole case is based on presumption by the Police that the applicant and co-accused were found present at the said flat for the purpose of selling or buying persons for the purpose of prostitution. That being the case, I have no hesitation in my mind to hold that the charge against the applicant and co-accused is groundless and there is no probability of their being convicted of the alleged offences. The trial of the accused would be an exercise in futility. Accordingly for the aforementioned reasons I direct that the proceedings against the applicant and co-accused, namely respondents 2 to 8, in Sessions Case No.261 of 1990 (State v. Aqeel Ashraf and others) under section 13/14 of Offence of Zina (Enforcement of Hudood) Ordinance pending before the Sessions Judge Karachi (East) are hereby quashed. They are on bail and their bail bonds are discharged. N.H.Q./M-1398/K Petition accepted.