1992 PLP 988 (MLD)

The applicants are facing trial under sections 6, 11, 13 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979. The brief facts giving rise to the present application are that on 26‑8‑1990 S.H.O. Sadiq Hussain Shah of P.S. Liaqatabad, Karachi organized raid on the house of Nunoo Mian son of Alain Sardar in presence of Mashirs Mulazim Hussain, Muhammad Ramzan and his subordinate staff and the applicants along with 15 Bengali women and girls were arrested. It is alleged in the F.I.R. that the said women were brought at the house of Nunoo Mian with; the intention to sell them. That the said Nunoo Mian and others are in the habit of bringing women from Bengladesh illegally, and thereafter, sell them in order to earn money. After necessary investigation the applicants and the co -accused were sent up before the Court. The applicants and the lady accused moved applications for bail before the Court and the lady accused were released on bail. I have heard the learned counsel appearing for the applicants, Mr. Abdul Ghafoor Mangi learned AA.‑G. appearing for the State, and have gone through the documents produced alongwith the bail applications. It was contended that section 6 of Offence of Zina applies only when Zina‑bil‑Jabar is committed with a woman against her wishes and in the present case there is no such allegation and as such section 6 was not applicable to the facts of the present case. It was further contended that looking to the facts and circumstances no case was made out under sections 11 and 13 of the said Ordinance and it was a case of further inquiry. It was further contended by Mr. Farid Gul Khan that applicant Muhammad Jahangir is below 16 years of age and therefore, he is entitled to bail. In addition to the above contention Mr. Syed Saeed Hasan Zaidi has contended that the name of applicant Muhammad Ali alias Pagla does not transpire in the F.I.R. nor he was present in the house at that time of incident. Even the house in question does not belong to him and therefore. he was entitled to bail. Mr. Abdul Ghafoor Mangi learned A.A.‑G. appearing for the State has opposed the grant of bail to the applicants. He has contended that P.Ws. Mulazim Hussain and Muhammad Ramzan have fully implicated the applicants that they bring women from Bengladesh and sell them to different persons after taking money from them. It was further contended that applicant Muhammad Ali alias Pagla is involved in as many as 7 cases, most of which are of similar nature and it is the only source of his income. It was further contended that applicant Abdul Manan is involved in as many as 17 cases and most of the cases are of similar nature and therefore, they are not entitled to bail. I have considered the contentions of the learned counsel and have gone through the documents. As far as applicant No.5 Muhammad Jehangir in Cr.B. No.1038 of 1990 is concerned, Form "B" submitted before the Director Registration under National Registration Act, 1973, duplicate copy of which has been produced before me shows that he was seven years of age in April, 1981, when the above form was filed and, therefore, he could be said to be of 16 years of age or little less than that and, therefore, I direct that he shall be released on bail on furnishing surety in the sum of Rs.20,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Judge. As far as applicant Muhammad Ali alias Pagla in Cr.B. No.1048/90 is concerned, it is an admitted position that co‑accused were caught from the house of Nanoo Mian and the applicant was not present there. His name does not transpire in the F.I.R. and the same has been included only in the Challan. It was contended by Mr. Abdul Ghafoor Mangi, that applicant Muhammad Ali is involved in number of cases of similar nature but that is not enough to dis entitle him to bail, when he was neither present at the place of arrest/raid nor the house in question belongs to him. I, therefore, direct that applicant Muhammad Ali in Cr.B. No.1048/90 shall be released on bail on furnishing. surety in the sum of Rs.20,000 and P.R. bond in the like amount to the satisfaction of the learned trial Judge. Adverting to the case of remaining applicants, it is the case of the prosecution that S.H.O. Said Hussain Shah had organized raid on the house of Nanoo Mian under instructions of S.D.P.O. Liaquatabad and it is alleged in the F.I.R. that the accused were found present in the house with the intention to sell the women to different persons. It is further alleged that Nannu Mian and other accused are in the habit of bringing women from Bangladesh illegally and sell them to earn money. Mashirs Mulazim Hussain and Ramzan have supported the S.H.O. inasmuch as they have stated that they were informed about the above allegations by the S.H.O. As far as the contention that section 6 of offence of Zina was not attracted in the present case was concerned, the argument is well founded as there is no evidence at present that any of the present accused had sexual intercourse with any of the lady accused against her wishes or otherwise and, therefore, section 6 will not be attracted/applicable to the facts of the present case. However, provisions of sections 11 and 13 of Zina (Enforcement of Hudood) Ordinance, 1979 are fully attracted in the present case looking to the circumstances/allegations and the same are punishable with imprisonment for life, whipping and also fine. The incident is a recent incident and the case has not yet proceeded. I am, therefore, of the considered view that there are no grounds for releasing the remaining applicants on bail and, as such, their applications are accordingly rejected. However, the applicants can repeat their bail application after complainant and one Mashir of arrest are examined, who shall be examined within 2 (two) months from the date of receipt of this order. H.B.T./M‑1466/K Order accordingly.