Mst. SHAILA vs THE STATE
This bail application arises from a criminal case registered against the petitioner for operating a premises used for Zina, following a police raid on her house. The core legal question was whether the police raid, conducted without a search warrant while pursuing an absconder, rendered the subsequent discovery of Zina and the arrest of the petitioner illegal, thereby entitling her to bail. The Court held that the police were justified in entering the premises to pursue an absconder, and upon discovering a serious offence in progress, were legally obligated to take cognizance of it. The Court distinguished the present facts from precedents where search warrants were improperly obtained or absent, noting that the immediate exigency of pursuing an absconder provided sufficient justification for the entry. The Court affirmed that the petitioner’s alleged involvement in running a prostitution den, supported by the recovery of incriminating material and the presence of multiple individuals engaged in illicit acts, outweighed her gender or prior acquittal in a similar case. Consequently, the bail application was dismissed, leaving the determination of procedural negligence for the trial court.
- Does a police raid conducted without a search warrant while pursuing an absconder render the subsequent discovery of an offence and resulting arrests illegal?
- Is the fact that an accused is a woman sufficient ground for the grant of bail in cases involving the operation of a prostitution den?
- Can the police take cognizance of an offence discovered incidentally while lawfully pursuing an absconder on private premises?
- Sections 10, 13, 14, 15, 16, 17, 18, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
' The petitioner seeks bail in a case registered against her and others vide F.I.R. No, 543, dated 28- 10-2001 for offence under sections 10/13 and 14 to 18 of Ordinance VII of 1979 at Police Staiton Shafiqabad, Lahore.
2. According to the F.I.R. The Police party raided the house of the petitioner in search of Khalid alias Chitta, an absconder, and found the petitioner and one Altaf Hussain at the outer gate of the house; that the Police party accompanied them in order to search the house; that on seeing the Police party Khalid alias Chitta ran away and the Police found different couples busy in commission of Zina in the rooms of the house. The accused persons were arrested and they told that they used to come there for the purpose of Zina.
3. The petitioner's learned counsel contends that the Police had conducted the raid at the petitioner's house without obtaining search warrants; that the Police had actually raided the house to arrest Khalid alias Chitta absconder, who was present in the house but, managed to escape on seeing the Police party; that initially the Police ought to have looked for the absconder instead of checking the rooms; that no recovery of money was made from the petitioner. In support of his contention; he relies on the following judgments: -
(1) Riaz v. Station House Officer; Police Station Jhang City (PLD 1998 Lahore 35).
(2) Muhammad Sajjad etc. v. State (1996 M LD 103) Adds that earlier the petitioner was involved in a similar case registered vide F.I.R. No,514 of 1998 in which she was acquitted on 23-7-2001.
4. On the other hand, the learned counsel for the Sate opposes the bail, inter alia, on the ground that, no doubt, the Police raided the house in search of Khalid alias Chitta, an absconder, but on finding that a serious offence was being committed by a number of persons, the Police was bound to take cognizance of the same; that the petitioner is running a brothel house; that the persons found present in the house were residents of different places and they stated that they used to come there for the purpose of Zina.
5. The material on the record shows that a large number of persons i,e, 8 men and 12 women, who were residents of different places were found in the house of the petitioner. Out of them Tahir Ahmad and Mst. Saima, Shaukat Ali and Mst. Saadia, Shahzad and Mst. Bushra were found busy in committing Zina. On being interrogated all the women stated that they used to come to the petitioner's Adda since long for the purpose of Zina. The accused Khalid alias 'China (absconder) purchases women and bring them at the petitioner's Adda. The Police recovered three cloth- sheets, apparently stained with semen, from the rooms where the accused persons were found committing the offence. All the male and female accused did not give consent for their medical examination so that corroborative evidence may not come on the record against them. The mere fact that the petitioner is a woman and that in a similar case she was acquitted earlier is no ground to allow her bail in the present case. It appears that she is indulging in the dirty business of running a prostitution den.
6. The, judgments in the cases ' of Muhammad Sajjad and Riaz (supra), relied upon by the petitioner's learned counsel, proceed on distinguishable facts. In the case of Riaz (supra) search warrants were issued by the Magistrate in relation to an offence commission of Zina. The Court held that Ordinance VII of 1979 was enacted to implement the Islamic provisions and did not provide for an intrusion into any one's house only to find out the commission of Zina. In the case of Muhammad Sajjad etc. (supra) search warrant was obtained from a Magistrate, who was not the Biqa Magistrate. Moreover, the Court found that in the F.I.R. The name of the Illaqa Magistrate was not mentioned. On this basis the Court observed that the warrant was obtained afterwards in the present case the Police had to act promptly in order to make an effort to arrest Khalid alias Chitta (Absconder), therefore, there was some justification for the Police to enter into the petitioner's house without first obtaining search warrant. In the process of searching out the absconder the Police found a number of persons indulging in Zina and had rightly taken cognizance of the same.
The question whether the Police officials were in any manner negligent in taking effective steps for arresting the absconder in the first instance, can be suitably examined and decided by the Trial Court after recording the evidence. I do not find any merit in this petition, which is dismissed.
Bail application dismissed.