1996 PLP 103 (MLD)

Sardar Ahmad Khan for Petitioner (in Crl. Misc. No.535‑B/95/BWP). Sardar Fazal Ahmad Langa for Petitioner (in CA Misc. No.534 B/95/BWP). Ch. Abdul Nabi for the State. Date of hearing: 16th August, 1995. This order is intended to dispose of the following two bail applications: ‑‑ (1) Criminal Miscellaneous No.534/B of 1995/BWP titled as Mst. Tasneem alias Mst. Tashi v. The State. (2) Criminal Miscellaneous No.535/B of 1995/BWP titled as Muhammad Sajjad v. The State. On receiving the secret information that the house of Muhammad Hayat accused was being used by the different persons for the purpose of Zina by consent wherein the prostitution was being carried on; Bashir Ahmad S.I. Police Station City Ahmad Pur East in the company of his subordinates as well as Muhammad Rafique and Shaukat Ali, after obtaining the search warrant from the Area Magistrate 1st Class, Ahmad Pur East, raided the house of Muhammad Hayat. Mst. Tasneem alias Mst. Tashi is said to be lying on a Charpai alongwith Muhammad Sajjad while in naked condition. They are said to be preparing to commit Zina by consent. They were apprehended. In another room another couple was found. All the persons including Muhammad Hayat. (owner of the house) were arrested. Bashir Ahmad S.I. got recorded F.I.R. No.223, dated 21‑7‑1995 at Police Station City Ahmad Pur East under sections 13, 14, 10(2)/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Some of the amount was also recovered from the pocket of the female accused and Muhammad Hayat and the police party termed the same as the amount paid and spent for the purpose of prostitution as well as the amount received as commission by Muhammad Hayat.

2. The bail petitions filed by the aforesaid petitioners have been rejected by the Additional Sessions Judge. Hence these petitions with the same desire.

3. I have heard the learned counsel for the petitioners as well as the learned State Counsel and gone through the record before me. It is mentioned in the F.I.R. that the search warrant was obtained from the Area Magistrate. The A.S.I. present in the Court has intimated that according to the record the search warrant was obtained from Ghazi Aman Ullah Khan, Magistrate 1st Class, Ahmad Pur East who is admittedly not the Ilaqa Magistrate of Police Station City Ahmad Pur East. In the F.I.R. the name of the Ilaqa Magistrate is not mentioned. This aspect of the matter is enough to make me express the view that the warrant was obtained afterwards and obviously due to the reason that since long the Magistrates and the police are in league to help each other. It is not a happy sign so far as the rule of law is concerned in a democratic country. Such a working simply shatters the foundation of such a case. The petitioners have procured a valuable legal point. Mst. Tasneem alias Mst. Tashi petitioner is a female whose case is covered by proviso i to subsection (1) of A section 497, Cr.P.C. Sajjad Ahmad petitioner is a student. Legally no student concession is available in the Courts. However, according to the material produced today he has to appear in the matriculation examination commencing with effect from 22‑8‑1995. If any amount was recovered it cannot be held that the same was the amount used for the purpose of sale and purchase of the female for prostitution. This ingredient of the prosecution material can be overlooked even at this initial stage. The attraction of section 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as such, becomes that of further inquiry. In a case of Zina‑bil‑Jabr the removal of lion cloth of the male accused and the removal of the Shalwar of the female victim may prove the prima facie existence of attempt of Zina. However, in the alleged case of Zina by consent the presence of the male and female accused persons on the cot while naked would not constitute the attempt of Zina by consent. 8 Even otherwise maximum punishment for an offence under section 10(2)/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is five years which does not fall within the prohibitory clause. In a case which does not fall within the prohibitory clause the grant of bail is a rule and its rejection is an C exception. Learned State Counsel has not been able to meet the aforesaid assertions raised by the learned counsel for the petitioners projecting the reasons for merit of the petitions moved by the petitioners for the purpose of their admission to bail. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis and dissection of the material and discussion would be that the petitioners are entitled to be admitted to bail.

3. I, therefore, accept these applications and admit these petitioners to bail in the sum of Rs.10,000 each with one surety each in the like amount to the p satisfaction of the Sessions Judge/Duty Sessions Judge, Bahawalpur and the bail bond etc. shall be retained in the office of the Sessions Judge which shall be added to the judicial file in case the challan is submitted and thereafter sent up to his Court as contemplated under section 190(3), Cr.P.C. N.H.Q./M‑2550/L Bail granted.