NADEEM alias PUPU vs THE STATE

ORDER

' KHURSHID ANWAR BHINDER, J.--- Nadeem alias Pappu petitioner seeks post-arrest bail in case F.I.R.

No,20 of 2009, dated 21-1-2009, registered under sections 371-A and 371-B, P.P.C. At Police Station Sangla Hill, District Nankana Sahib.

2. Precise allegations against the petitioner, as per the narration of the F.I.R., are that he was caught red-handed while running a brothel house in the residential area wherein one couple was committing fornication and case was registered against the petitioner under the above said provisions of law.

3. Learned counsel for the petitioner submits that the police had illegally conducted raid at the residential house of the petitioner as no search warrants were procured by the police before conducting the raid which is a mandatory provision of law under section 105, Cr.P.C. Nobody from the Locality was associated in the investigation process. No medical examination was conducted in order to determine as to whether Zina was committed in the house of the petitioner. He further submits that there is no evidence regarding the recovery of currency notes which were allegedly recovered by the police officials at the time of raid from the couple who was committing Zina inside the house of the petitioner. No recovery of clothes was effected from the couple. He also argues that the petitioner is a married person having his family members residing in the same house and it is not practically possible for a married person to run a brothel house in his residential house and the people of the locality would certainly come to know that illegal business is being carried out in a house and they will lodge a complaint to the police, therefore, the case of the petitioner clearly falls within the ambit of further inquiry into his guilt and he is entitled to be released on bail.

4. Learned D.P.-G. Opposes the bail application and submits that the petitioner is nominated in the F.I.R. With a specific role of running brothel house in the residential area and, is, therefore, liable to be tried under the above said provisions of law. Medical examination of Mst. Shazia who was apprehended from the house could not be conducted due to her refusal. He further submits that the police witnesses are as good witnesses as anybody else, therefore, reliance can be placed on their evidence. He lastly submits that the offences under which the petitioner is liable to be tried fall within the prohibitory clause of section 497, Cr.P.C.

5. I have heard both the learned counsel and have also perused the record. Petitioner is no doubt nominated in the F.I.R. But I am afraid, this Court has to see as to whether the offences under which the petitioner is liable to be tried are made out in the given circumstances or not. Story narrated in the F.I.R. Seems illogical, irrational and implausible for the reason that it is certainly not possible for anybody to run a brothel house in a residential area because in our society and culture such type of business is not permissible and the people of the adjoining area certainly come to know about the illegal business then obviously they can lodge a complaint to the police and nobody would dare doing such-like business in a thickly-populated residential area. Furthermore, police officials had committed glaring illegality in not following the mandatory provisions of law under section 105, Cr.P.C. And Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 for not procuring search warrant for raiding the residential house. Above all, it is the violation of Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 which warrants privacy of the house.

6. Medical examination of the apprehended couple had not been conducted to know as to whether offence of Zina has been committed or not. Recovered clothes of the couple had also not been examined. Recovery of money is so meagre that everybody can possess that much of amount which has been recovered from the couple, therefore, recovery of business money is insignificant.

7. Regarding sanctity of the house Holy Prophet (Peace be upon him) has attached much importance to the maintenance of sanctity of the house as Holy Prophet (Peace be upon him) had said that if you go to some body's house knock the door once and if there is no reply knock it again and if there is no reply knock it for the third time and if still there is no reply then do not try to enter the house and go back. Hazrat Umar (R.A.) while being the Great Caliph of Madina once was moving around in the streets of Madina and was passing through a street where he heard a noise in the house and he had over-heard that music was being played inside and people were busy in marry making. Great Caliph in order to know as to what is happening in the house had scaled over the wall of the house to know as to why the residents of the house are making hue and cry and marry making inside the house and inquired from the head of the family who was busy in marry making. Hazrat Umar (R.A.) inquired from him as to why you people are doing un-Islamic acts upon which the head of the family replied that you being Caliph of Islam and custodian of the rights of people scaled over the wall of my house and violated the sanctity of the house which has not been approved by the Holy Prophet (Peace be upon him) and did not seek permission to enter the house upon which Hazrat Umar had apologized his conduct and had gone back. Since Islam has attached this much sanctity to the residential house, therefore, police officials in the instant case have crossed all the limits and norms of the sanctity of the house and had conducted illegal raid at the house of the petitioner which is not only unwarranted in Islam but also in the Constitution of the Islamic Republic of Pakistan, 1973 as the basic provisions of law as envisaged in section 105, Cr.P.C.

And Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 have been violated, therefore, offences under which the petitioner is liable to be tried are not made out against him as per facts and circumstances of the case. I am, therefore, of the considered view that the case against the petitioner is that of further inquiry into his guilt. I, therefore, admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs,50,000 with two sureties in the like amount each to the satisfaction of the learned trial Court.