Muhammad Boota Etc. vs The State
This consolidated order before the Lahore High Court arose from bail applications filed under Section 497 of the Code of Criminal Procedure 1898 in a case registered under Sections 13, 14, and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The prosecution alleged that the petitioners were apprehended inside a private residence allegedly operating as a brothel house while engaged in zina. The principal legal issue was whether the petitioners were entitled to post-arrest bail on the ground of further inquiry. The High Court admitted the petitioners to bail, noting that the alleged brothel operator had already been granted bail and that the complainant and eye-witnesses had submitted affidavits exonerating him. Furthermore, private individuals lacked legal authority to unlawfully enter a private dwelling without adopting legal procedure, the record failed to specify who was committing zina with whom, no medical examination of the female petitioners had been conducted, and their continued detention was unnecessary for investigation.
- Whether the failure to conduct a medical examination of female accused in a zina case makes out a case for further inquiry for post-arrest bail?
- Whether the lack of specific evidence clarifying which accused allegedly committed zina with whom entitles accused persons to post-arrest bail under further inquiry?
- Whether private citizens are legally competent to enter a private house to apprehend persons suspected of running a brothel or committing zina without adopting legal procedure?
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 13, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 14, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
NAZIR AHMAD SIDDIQUI, J.~ This single order shall dispose of the following bail petitions arising out of IR No. 113/2003, dated 27.5.2003 registered under Sections 13/14/10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 at Police Station City C-Division, District Rahim Yar Khan.
(i) Cr. Misc. No. 777-B/2003 Muhammad Boota and 5 others Vs. The State and;
(ii) Cr. Misc. No. 807-B/2003 Mst. Kalsoom and another vs. The State
2. As per FIR petitioners were taken into custody by the complainant and others after having found them committing Zina with each other in the house of Nazir Ahmad who was allegedly running a brothel house.
3. Arguments heard. Record perused.
4. Lt could not be denied that Nazir Ahmad against whom allegation of running a brothel house was levelled, had already been enlarged on bail vide order of the learned Additional Sessions Judge, Rahim Yar Khan; that affidavits of alleged eye-witnesses namely Fayyaz son of Muhammad Nanas and Khawand Bakhsh son of Jam Ghalu including the complainant Mithal son of Rahim Bakhsh to the effect that the principal accused Nazir Ahmad was wrongly involved, go a long way prima facie to create a negative impression qua the prosecution story stated in the FIR; that apparently the complainant and the alleged eye-witnesses were not competent to step into a private house even on the pretext of having received an information about the commission of alleged offence, they could have adopted a legal course; that presently there is no evidence on the police file as to who was committing zina with whom; that medical examination of. The petitioners (female) was not conducted; that the petitioners are behind the bars for the last four months and presently they are no more required by the Investigating Agency.
5. All the above factors taken together bring the case of the petitioners within the ambit of further inquiry, therefore, this petition is allowed by admitting the petitioners to post-arrest bail subject to their furnishing bail bonds in the sum of Rs. 1,00,000/- (Rs. One lac) each with two sureties each in the like amount to the satisfaction of their learned Trial Court.