2003 PLP 1154 (YLR)

Arshad Lodhi, A.A.‑G. for the State. I intend to dispose of bail applications Nos. 744 and 747 of 2002 by a single order as these bail applications arise out of the common order. The applicants are facing trial in the Court of 1st Additional Sessions Judge, Malir Karachi, in Sessions case No.149 of 2002 under sections 13/14, 18, 19(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979, arising out of the First Information Report No.44 of 2002, Police Station Ibrahim Hyderi, Karachi East. Briefly stated facts of the case are that on 16‑4‑2002 Inspector Ali Hassan Shaikh, Incharge Police Post Bhitai Colony, of Ibrahim Hyderi Police Station alongwith his subordinate staff was on routine round in his area. During patrolling, he received spy information that some males and females were engaged in prostitution activities in house No.L/320, Street No.9, Altaf Town, Bhitai Colony, Karachi. The Inspector picked up two Mushirs Zahid Hussain and Sattar and reached at the pointed venue. Inspector Ali Hassan after scaling over wall entered the house. He peeped through ventilation of a room and found that 3 pairs of males and females were engaged in committing Zina. He got the door opened and entered the room. On commotion Mohallah people reached there, upon which, one female and a male succeeded to escape. The remaining accused namely Aftab, Riaz, Mst. Shabana and Mst. Saba Akhtar were taken into custody. The captured accused disclosed the names of persons who escaped from the scene of offence, to be Asif and Mst. Khalida alias Kiran. The accused were taken to Police Station where Inspector Ali Hassan recorded first information report on behalf of the State. Police took up investigation and submitted challan in the Court. The accused were sent up to stand trial, which is at present pending in the Court of First Additional Sessions Judge, Malir, Karachi. Mr. Abdul Waheed Siddqui, learned counsel for the applicants Muhammad Riaz and Muhammad Aftab and Mehmood A. Qureshi, learned counsel for the applicant Asif submitted that the accused who were caught at the spot were not referred to the doctor to substantiate the plea of commission of Zina. The contents of first information report show that the incident was witnessed by the complainant only. It is pleaded that the prosecution story on the face of it appears to be absurd. The record shows that all the three culprits were engaged in committing Zina in one room and immediately thereafter Mohallah people reached there but two of the accused namely Asif and Mst. Khalida alias Kiran fled from the scene. It is further submitted that the complainant had no legal right to trespass into the house without seeking any permission from authorised officer. No private person from Mohallah was examined as witness. It is pleaded that ingredients of sections applied in the first information report have not been attracted. The contents of first information report do not indicate that the accused were seen naked by any of the witnesses. Mr. Arshad Lodhi learned A.A.‑G., in view of the aforesaid arguments have conceded to the bail plea of the applicants. The record shows that the complainant was on routine round in the area reached at the venue upon receiving spy information. He entered the house by scaling the wall and peeped through ventilation. He found that three couples were engaged in committing Zina. Nowhere in the first information report, it is stated that other companions of complainant had also entered the house or had seen the incident. It was a night time and Mohallah People allegedly reached there. No one from them had seen the alleged commission of Zina. The accused were not got medically examined for substantiating allegations made in the first information report. The allegations leveled against the accused are yet to be established by the prosecution. The bail plea of accused has been conceded by the learned A.A.‑G. For the aforesaid reasons, the accused were admitted to bail by a short order, dated 13‑6‑2002 and these are the reasons. H.B.T./A‑409/K Bail granted.