1990 PLP 1488 (MLD)

Muhammad Saleem and another v. The State 1988 P Cr. L J 2321 rel. Sh. Naveed Shaharyar for Petitioner. C.M. Latif for the State. Date of hearing: 14th April, 1990. Manzoor Ahmad petitioner, who is involved in a case under section 10/13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, arising out of F.I.R. No. 103 dated 8‑11‑1989, registered at Police Station Cantt, Sargodha, seeks to be admitted to bail.

2. According to the prosecution version it was reported to A.S.I. Muhammad lqbal that inside Zahoor Motors Workshop, two men and a woman were busy in illicit intercourse and if a raid is conducted, they are likely to be arrested. In consequence, the raiding party reached the spot and peeped through door and saw that Mst. Nusrat Bibi was lying naked, Bashir Ahmad was committing Zina with her. Thereafter, the petitioner is alleged to have committed Zina with the girl.

3. Learned counsel for the petitioner contends that the police has violated the provision of Article 14 of the Constitution of the Islamic Republic of Pakistan, which reads as follows:‑‑ "

14. Inviolability of dignity of man etc (1) .‑‑The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence". The raid conducted at the workshop without obtaining warrants of search from the Magistrate is against the mandatory provisions of the Criminal Procedure Code, the evidence so collected is improper and highly objectionable in the eye of law. The only public witness who was associated with the raid, has sworn an affidavit exonerating the petitioner. Learned counsel submitted that in view of this position, the material so far collected by the police cannot be used against the petitioner and the case against him is of further inquiry.

4. Learned counsel for the State has opposed this application and submitted that the petitioner is named in the F.I.R. he is involved in a case which falls within the prohibitory clauses and as such is not entitled to bail.

5. After hearing the learned counsel for the parties and perusing the record, I find that there is substance in the submission of the learned counsel for the petitioner that in view of Article 14 of the Constitution Eaves‑dropping, tapping stealthily, photographing something inside the house are invasions on privacy and as such is not permissible under the Constitution as well as in Islam. A Furthermore, the police has entered the premises without observing the formalities of law, hence the evidence so far collected is open to objection. Reliance has been placed on Muhammad Saleem and another v. The State 1988 P Cr. L J 2321.

6. In such circumstances, the case against the petitioner is of further inquiry and the petitioner is admitted to bail in the sum of Rs. 25,000 (Rupees twenty‑five thousand only) with one surety in the like amount to the satisfaction of the Assistant Commissioner/Deputy Magistrate, Sargodha. N.H.Q./M‑2069/L?????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.