NASIR AMIN vs THE STATE And Another
This is a post-arrest bail petition filed by the petitioner, Nasir Amin, who was charged under Sections 371-B and 294 of the Pakistan Penal Code 1860, following allegations of facilitating illicit intercourse and possessing an obscene CD. The core legal question was whether the allegations, primarily based on an inadmissible confessional statement made to a police officer, established a prima facie case sufficient to deny bail under the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Court held that the confession was inadmissible under Article 38 of the Qanun-e-Shahadat Order 1984, and that the mere possession of a CD or allowing a friend to use one's house did not prima facie constitute an offence under Section 371-B of the Pakistan Penal Code 1860. Consequently, the Court granted bail, emphasizing that the case required further inquiry. The key principle laid down is that the benefit of doubt must be extended to an accused even at the bail stage, and post-arrest bail cannot be refused as a form of advance punishment.
- Is a confessional statement made before a police officer admissible as evidence in a criminal case?
- Does the mere preparation of a CD depicting sexual intercourse fall within the mischief of Section 371-B of the Pakistan Penal Code 1860?
- Can post-arrest bail be refused to an accused as a measure of advance punishment?
- Should the benefit of doubt be extended to an accused at the bail stage?
- Section 371-B, Pakistan Penal Code 1860
- Section 294, Pakistan Penal Code 1860
- Article 38, Qanun-e-Shahadat Order 1984
- Section 497(1), Code of Criminal Procedure 1898
ORDER SH. AHMAD FAROOQ, J.---The instant post arrest bail petition has been filed on behalf Nasir Amin, who is behind the bars, in a case arising out of F.I.R. No.260 of 2010, dated 12-6-2010, registered in Police Station City Samundari, District Faisalabad, under section 371B/294, P.P.C.
2. Briefly, the prosecution story, as narrated by the complainant/Muhammad Sarwar, S.-I., Police Station City Samundari, in the. F.I.R., is that on spy information, when the present petitioner was apprehended, he was carrying an obscene CD (compact disc.) in his right hand and on his physical search, a photocopy of letter dated 5-12-2009 with a monogram of I.S.I was also recovered. The complainant further alleged that the accused permitted his friend, namely, Sheikh Mohsin to have illicit intercourse with one Farzana at his residence. The accused is also alleged to have prepared a C.D (compact disc.) of the commission of sexual intercourse by Sheikh Mohsin with a woman and thereafter, he had been exploiting the said persons.
3. Learned counsel for the petitioner submitted that no offence, falling under section 371-B P.P.C., is made out against the present petitioner from the contents of the F.I.R. He further submitted that the offence, falling within the mischief of section 294, P.P.C., is bailable. He argued that the petitioner is behind the bars since 12-6-2010 and his case falls within the ambit of further inquiry, entitling him to be released on bail. Lastly, he argued that the confessional statement of the accused made before the police officer is not admissible in evidence in view of Article 38 of the Qanun-e- Shahadat Order, 1984.
4. Conversely, the learned Deputy Prosecutor-General opposed the instant petition on the plea that the petitioner was caught red handed while being in possession of a C.D, which contained video of the sexual intercourse being committed by Sheikh Mohsin with one Mst. Farzana. He maintained that the punishment of the offence, alleged to have been committed by the present petitioner, falls within the prohibitory clause of section 497(1), Cr.P.C. And the petitioner is not entitled to be released on bail.
5. Arguments heard. Record perused.
6. A bare perusal of the F.I.R. Would reveal that the allegations are based on the confessional statement of the accused made before the complainant, who is a Police Officer, and the same is inadmissible in evidence according to Article 38 of the Qanun-e-Shahadat Order, 1984. There is no allegation that the accused/present petitioner provided any woman to Sheikh Mohsin for the purpose of prostitution or illicit intercourse. Allegedly, Sheikh Mohsin simply used the house of the accused/ present petitioner for the purposes of prostitution. Hence, the commission of an offence by the present petitioner attracting the provisions of section 371-B, P.P.C. Is doubtful. Moreover, there are sufficient grounds to enquire further into the guilt of the present petitioner as mere preparation of a C.D (compact disc.) of any person indulging in sexual intercourse do not, prima-facie, fall within the mischief of section 371-B, P.P.C. Needless to mention here that the benefit of doubt is to be given to an accused even at bail stage. The petitioner is behind the bars since 12-6-2010 and his further detention would not serve any purpose or advance the case of the prosecution. It is well settled principle of law that post arrest bail cannot be refused to an accused as a measure of advance punishment.
7. In view of above, the instant post arrest bail petition, filed on behalf of Nasir Amin, is accepted and he is admitted to bail subject to furnishing of bail bonds in the sum of Rs.1,00,000 with one surety, in the like amount to the satisfaction of learned trial Court.