P L D 2003 Karachi 65 (PLP)

The facts giving rise to the applications are as follows:‑‑ S.I.P. Muhammad Anwar Jatt of Police Station 'B' Section, Sukkur lodged F.I.R. in each case on behalf of the State that they were present at the Police Station when at about 15‑10 hours they received a spy information on telephone that some criminals with weapons were available in the Bungalow of Mian Asadullah and Mian Jamaluddin Indhar near Old Railway Mal Godown, Sukkur they called the other police staff duly armed. On entering the premises the criminals could not be apprehended however, they found the present applicants involved as follows:‑‑ In Criminal Bail Application No.341 of 2002 applicant Mst. Saima Arain was found in naked condition with Jamaluddin alias Jamalullah kissing each other when the police pushed the door of room open and she disclosed to be resident of Faisalabad. In Criminal Bail Application No. 342 of 2002 applicant Mst. Samina Rajput was found in naked condition with Hafiz Sultan Ahmad kissing each other when the police pushed the door of room open and she is resident of Lahore. In Criminal Bail Application No.343 of 2002 applicants Umesh and Preetamdas were found in naked condition with one woman Guria kissing each other when the police behind a curtain in the middle of the room and they are resident of Karampur while the other half of the room was being used by another couple. In Criminal Bail Application No.347 of 2002 applicant Mst. Gudiya Mughal was found in naked condition with the applicants in Cr. B.A. No.343 of 2002 namely Umesh Kumar and Preetamdas kissing each other when the police behind the curtain placed in the middle of room. She is resident of Gujranwala. In Criminal Bail Application No.348 of 2002 applicant Abdullah Jhulan was found in naked condition with one woman Salma (applicant in Cr. B.A. No.371/2002) kissing each other when the police pushed the door of room and he is resident of Haleji Shareef. In Criminal Bail Application No.350 of 2002 applicant Mst. Naina was found in naked condition with one Allahdino kissing each other when the police entered the room, she is resident of Lahore. In Criminal Bail Applic.1tion No.371 of 2002 applicant Mst. Salma Pathan was found in naked condition with one man Abdullah (applicant in Cr. B.A. 384/2002) kissing each other when the police opened the door of the room, she is resident of Gujranwala. In Criminal Bail Application No.372 of 2002 applicant Hafiz Sultan Ahmad was found in naked condition with one woman Mst. Saima kissing each other when the police pushed the door and entered the room, he is resident of Haleji Shareef, Mst. Saima is resident of Lahore. All the females are said to have been brought from different cities of Punjab about two/three weeks earlier for the purpose of prostitution, recoveries also include record of individual accounts of the females maintained with respect to these activities. The contention of M/s. Imdad Ali Awan, Abdul Kareem Noonari, Abdul Hakeem Bijarani, Rana Asif Kamal, Ghulam Hassan, Malik Moinuddin, Qurban Ali Malano, Mumtaz Ali Siddiqui and Nizamuddin Baluch the learned counsel for the applicants are that the offence with which the applicants are charged with, does not fall within the prohibitory clause of section 497, Cr. P.C. and at best involves the applicants in an offence under section 18 of the Zina (Enforcement of Hudood) Ordinance, 1979. It is further contended that from the facts of the case no offence of attempt to commit Zina even for the purpose of section 18 is made out against the applicants, as the question, of intention is not involved and that the facts at best may amount to preparation and not an attempt. The learned counsel have further contended that the applicants are charged with the offence in pursuance of an illegal entry made by the police officers in a private premises without a search warrant in violation to the provisions of section 103, Cr.P.C. and the arrest has also beep made without involving any person from the locality as a witness which makes the case of the applicants to be doubtful. That the police reached after about 2 hours of receipt of information and the fact that by that time the accused were only embracing each other does not stand to reason. It has also been alleged that there is strained relationship between one of the occupants of the premises and his ex‑wife divorced about 18 months back which has resulted in a false involvement of the applicant. However, no bail application has been made on his behalf nor such facts are placed on record on this point therefore does not require any further consideration. The learned counsel for the applicants in support of his contention have relied upon the case‑law reported as Muhammad Saleem and another v. The State 1988 PCr. LJ 2321, Muhammad Naeem and another v. The State 1999 PCr.LJ 463, Ashique Ali v. The State 2002 MLD 1138, Mst. Shameem alias Aashee v. The State 1989 MLD 4791, Jaro Khan v. The State 1998 PCr.LJ 800 and Tariq Bashir and 5 others v. The State PLD 1995 SC

34. Mr. Shahani learned Addl. A.‑G. appearing for the State has vehemently opposed the bail application and has argued that there is clear attempt of Zina falling under section 18 of the said Ordinance. It is contended that the house does not belong to the females and is being used as prostitution den. The accused/female are all from the different places of Punjab so also the male have different addresses and all of them were present only for the purpose of having sex. The spy information on which action was taken was based on presence of some armed criminals who could not be apprehended but that led to the discovery of the prostitution den and in these circumstances the question of obtaining permission for search or local witness could not arise as the police had no intimation of such an eventuality till the time when they were already inside the house and had made the arrest. He further contended that the challan has been filed after investigation is under sections 13, 14 and 18 of the said Ordinance and the case of the present applicants indulging the act of prostitution is fully covered under these sections. He laid emphasis on the word 'presume' appearing in the explanation to section 14 of the Ordinance. He also pointed out that there was no past enmity with the applicants. The females have wine from Punjab only to indulge in this act. The very purpose of their presence was to commit the offence and if the police would not have intercepted nothing further would have restrained them from commission of the offence of Zina. Learned Addl. A.‑G. in support of his contention has placed reliance on and Muhammad Akram and 3 others v. Mst. Tazeem Akhter 1990 MLD 1280 and Muhammad Bilal and another v. Superintendent of Police Dera Ghazi Khan and another PLD 1999 Lahore

297. He has further contended that even if the case does not fall within the prohibitory clause of section 497, Cr.P.C. The question of bail is to be considered and decided in such cases on the basis of the facts of each case and not in a mechanical manner and bail cannot be claimed as of right in cases not falling under the prohibitory clause as held by the Honourable Supreme Court in the case of Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Muhammad Siddique v. Imtiaz Begum and 2 others, 2002 SCMR

442. He has further contended that deeper appreciation cannot be made at the bail stage and 'the applicants do not deserve for the concession of bail and in support of his contentions has relied upon the case reported as Abdul Razzaq v. The State 1990 MLD

184. Both the parties had gathered with specific intention and common object. The female involved hail from different cities of Punjab. The only reason assigned for non‑commission of the offence is the intervention of the police which leads to a conclusion of the intention to commit the offence and the parties had on their part proceeded for the same. Generally offences of such nature are not detected as by then very nature the parties involved try to conceal them. There is no allegation that of previous information to the police regarding the commission of offence and it was detected by chance when following spy information pertaining to some armed criminals who could not be apprehended. Likewise a tentative assessment of the involvement of the male applicants is to be made on the basis of the facts as are available on record without deeper appreciation of evidence. In the case of Mst. Nazran Bibi v. The State PLD 1986 Sh.C (AJ&K) 112 it has been held that: "In present case, accused is woman. Her case is different in kind from the case of a male accused. It is noticed that accused is permanently resident of Jhelum and she came to Mirpur a month earlier to the incident with a view to carrying foul business, to earn her livelihood. She has no Mehram in Mirpur. Ch. Muhammad Taj was unable to disclose identity or particulars of any relations of her in this area. In this view of the matter, it does not appear just and expedient to release her on bail, particularly to avoid likelihood of repetition of alleged offence. She will be safe in the lock‑up for the time being." The Court may decline to admit an accused to bail in cases not falling under the prohibitory clause of section 497 after a tentative assessment on the basis of the material available on record and each case is to be decided in the light of the specific facts on its own merits as held by the Honourable Supreme Court in the case of Imtiaz Ahmad v. The State PLD 1997 SC

545. With due differences to the above findings with which I am in respectful agreement and in view of the above discussion as there is sufficient material prima facie involving the applicants with the commission of the offence. The female accused being resident of different cities of Punjab, the possibility of their abscondence cannot be ruled out. Likewise their release at this stage may encourage them to be led in the repetition of the same offence to earn their livelihood. None of the case‑law cited by the learned counsel for the applicants referred to the case of regular prostitution den as in the instant case the question of preparation and attempt is to be arrived at on the basis of each case, except Mst. Shamim alias Aashi's case where also the facts are dissimilar: as such the case‑law is distinguishable from the instant case. I am therefore, of the humble view that the applicants are not entitled for the concession of bail. Consequently the bail applications are dismissed. However the learned trial Court is directed to ensure expeditious trial and disposal of the cases. N.H.Q./S‑236/K Bail refused.