2007 PLP 333 (YLR)

FAZAL-E-MIRAN CHAUHAN, J.

The petitioners seek post-arrest bail in case F.I.R. No.267, registered with Police Station Jalilabad, Multan on 29-12-2005 for an offence under sections 10/18/13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. Succinctly, the facts of the F.I.R. are; that on, 29-12-2005 during patrolling duty at Chowk Aziz Hotel Multan, the Investigating Officer came to know through secret informer that one Sohail co-accused has established the brothel house in his guest house namely Dream Guest House near Railway Road, Multan and at that time there are some males and females in the said guest house for the purpose of Zina. The police raided the Dream Guest House. The co-accused/owner of guest house Sohail succeeded to fly away. In seven rooms, the police apprehended the accused in half naked position as they were preparing for the commission of Zina.

3. Learned counsel for the petitioners contends that a false and frivolous case has been registered against the petitioners; in fact, they were not arrested from inside the guest house; the petitioners Muhammad Zia, Muhammad Qasim and Nasir Nawaz are real brothers and it is not possible that all the three real brothers will commit zina in the same guest house and at the same time; that according to the F.I.R. sections 13/14 of the abovementioned Ordinance are not attracted; admittedly, according to F.I.R. no sexual act/intercourse was committed in any room and thus, section 10 of the Hudood Ordinance is also not attracted. So far as section 18 is concerned, there is no evidence available on the record to connect the petitioners with the commission of the offence because the F.I.R. is silent about the role of the petitioners and has not described the preparation which was made by the petitioners to commit Zina; the raid itself is illegal as neither permission for conducting the same was obtained nor the concerned Magistrate accompanied the raiding party; from the bare perusal of the F.I.R. male fide and malice of the police is evident and the petitioners are in the jail since their arrest and no useful purpose would be served to keep them in jail as nothing has to be recovered from the petitioners. It is lastly argued that the owner of the guest house has been granted pre-arrest bail by the learned Additional Sessions Judge, Multan. Reliance is placed on Riaz v. S.H.O. P.S. City Jhang (PLD 1998 Lahore 35), Muhammad Abbas alias Ajmi v. The State (2005 YLR 3193), Yasir Arfat v. The State (2002 YLR 324) and Mst. Shakila v. The State (2001 PCr.LJ 43).

4. Conversely, learned counsel appearing on behalf of the State opposed the bail application contending that while recording their statements under section 161, Cr.P.C. the petitioners admitted that they came to the guest house to enjoying and booked different girls for this purpose. Female co-accused arrested by the police also made similar statements.

5. I have heard the learned counsel for the parties and have gone through the record. As per F.I.R., when the raid was conducted from one room one woman namely Khushbu and two males namely Ghulam Akbar and Muhammad Qasim were arrested. From the 2nd room Mst. Farrah along with Shoaib Ahmad and Muhammad Zia were arrested. From the 3rd room Mst. Sana along with Nasir Nawaz rand Sajjad were arrested. From the 4th room Mst. Mudiha along with Muhammad Abbas and Abdul Qadir were arrested, as at the time of raid were preparing to commit Zina; they were not found in compromising position. Thus, to attract the provision of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not attracted. Similarly, to attract provisions of sections 13/14 of the said Ordinance it is clear from the language used in the section that there must a be transaction of sale and hire with the intention, that such may be used for the purposes of committing Zina or illicit intercourse meaning thereby it is a fact which is to be proved by evidence, therefore, mere presence of males and females in a room is not sufficient to believe at the bail stage that the females were sold by anyone or hired by any one or brought by someone for the purposes of illicit intercourse. Even otherwise, the head of the raiding party did not disclose in his complaint that any pair was busy in the commission of zinc. In the circumstances, the guilt of the petitioners attracting the provisions of sections 10/13/14 is yet to be proved making it a case of further inquiry to the extent of the petitioners. From the facts of the case as narrated in the F.I.R. none of the accused had put off his/her clothes and they had not done any particular act so as to bring their case within the purview of section 18 of the above noted Ordinance. Selling or hiring of females is, prima facie, not proved from the record. The case against the petitioners, thus, needs further inquiry.

6. As a consequence of the above discussion the bail petition is allowed and the petitioners are directed to be released on bail subject to their furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court. S.M.B./S-184/L Bail granted.