1999 P Cr (PLP)

Ch. Muhammad Ilyas Jhammat assisted by Muhammad Azam Awan for Respondents. A case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against respondents Nos.1 to 3 at Police Station Jalalpur Bhattian, District Hafizabad vide F.I.R. No.241, dated 2-8-1998. The respondents aforesaid were admitted to pre-arrest bail which was later on confirmed by Mr. Muhammad Zahoor Abbasi, learned Sessions Judge, Hafizabad vide his order, dated 12-8-1998.

2. The order of the learned Sessions Judge is assailed on the ground that the principle of pre-arrest bail was totally ignored; that the offence of Zina was made out from the evidence collected by the prosecution; and that the respondents, after earning the bail, were yet indulging in committing Zina with each other. It was, therefore, prayed that their bails be cancelled.

3. I have heard learned counsel for the parties and find that this case was registered at the application moved by the residents of the village Kotla Anandan through Abdul Latif son of Muhammad Siddique. It was alleged in the application that Mst. Bilqees respondent was running a brothel house; that persons of immoral character were on visiting terms with her; that she was asked to stop the visits of such persons but she managed to call the complainant to the police station through her influence and got him insulted. It was added in the petition that on the preceding night, some persons while deadly intoxicated were watching blue prints in a gay meeting. The whole village was cited to be a proof for such type of immorality. This petition was addressed to the member, "Khidmat Committee" District Hafizabad who onward submitted it to the Chairman, Khidmat Committee for further action. The Khidmat Committee prepared an enquiry report (Annexure "C") in which it was found that the respondents were having illicit relations and were committing Zina for which some witnesses were also cited. The enquiry report was signed by the Chairman and members of the Khidmat Committee which also included Rana Muhammad Suleman, Advocate (Chairman) and Ch. Akhtar Hussain, D.S.P., Pindi Bhatian. In the meantime, some villagers also moved the District Magistrate by making an application regarding the aforesaid immoral activities. The enquiry was got conducted by the Deputy Commissioner, Hafizabad from Assistant Commissioner, Hafizabad who submitted the Report vide No.PA/AC-41, dated 2-7-1998 in which he concluded that though there was no tangible proof of illicit relations but Nasir respondent used to visit the house of Bilqees respondent to which the latter had permitted. However, he added that it can be safely termed that Bilqees and aforesaid Nasir Faqeer were committing adultery. The Assistant Commissioner also reported that the whole village had turned against the ways of Nasir and Bilqees due to which there was charged atmosphere at the village. He recommended that Nasir Faqeer be declared persona non grata for the village Kot Anandan or in the alternative, Bilqees and her husband may be asked to shift to the house of Nasir Faqeer in the latter's village namely Jalalpur Kohna.

4. The F.I.R. in the case was lodged on the aforesaid complaint supported by the enquiry report of the District Khidmat Committee. The evidence collected by the prosecution consisted of the statement of Abdul Latif who contended that Bilqees Bibi and Nasir Faqeer slept together in a room on a cot while husband of Bilqees was away to Quetta. Likewise, Muhammad Mansha P.W. stated its his statement that he had seen Mst. Bilqees and Nasir Faqeer in naked condition lying on a cot and upon restraining them, they started quarrelling with him. Apart from them, Sughran Bibi, a Jathani of Bilqees (wife of brother of husband of Bilqees Bibi) also supported the complaint that Mst. Bilqees and Nasir Faqeer had been committing fornication. The prosecution also collected other witnesses of the village who supported the contentions regarding the commission of Zina, etc. against the respondents including father-in-law (Susar) of Bilqees Bibi.

5. In view of the aforesaid facts, it can be said that the respondents are prima facie involved in an offence which falls within the prohibitory clause of section 497, Cr.P.C. They had actually no case for bail before arrest which the learned Sessions Judge granted to them without taking into consideration the principle regulating such bail. Need not to be said that pre-arrest bail is only to be granted in exceptional cases, such as where there are allegations of mala fide of the police or innocence of the accused is manifestly palpable from the bare reading of the F.I.R. or from the material placed before the Court. In other cases, the investigation should be allowed to take its usual course.

6. As already pointed out above, in the instant case, almost the entire population of the village has turned against the respondents for their immoral life which needs to be taken serious notice in our society. The mere fact that the people were visiting the house for such immoral activities with the permission of inmates of the house would not protect them from the mischief of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

7. In view of my above discussion, I come to an irresistible conclusion on the tentative assessment of the material placed before me that the respondents were not entitled to pre-arrest bail and as such, the petition is allowed and pre-1 arrest bails granted to the respondents are cancelled. They shall be taken into custody and made to join the investigation if required. Q.M.H./M.A.K./A-356/L Bail cancelled.