YASAR ARFAT vs THE STATE

ORDER

' Yasar Arfat son of Muhammad Yousuf has applied for his bail after arrest in the case bearing F.I.R.

No, 665 dated 7-12-2001, registered under sections 10, 13, 14 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, with Police Station Sadiqabad, District Rawalpindi.

2. The allegation against the petitioner was that on 8-12-2001 at about 9-00 p.m. In the area of Muslim Town, Rawalpindi when the police party headed by Inspector/S.H.O. Police Station Sadiqabad upon an information with regard to running a brothel house raided at the house bearing No, B-IV/608 owned by Muhammad Akram alias Shahid co-accused, he was found in the room of the house while wearing his clothes and that a young girl in naked position was lying on the bed whose name as it transpired later on was Nadia wife of Muhammad Zubair resident of Mulian Road, Lahore and thereafter co-accused males and females were also apprehended from the same house, so at the instance of Inspector/S.H.O., Police Station Sadiqabad the above said case was registered.

3. Learned counsel for the petitioner mainly argued that the police party could not enter into the house without a search warrant, therefore, the raid conducted by the police was illegal, moreover, un-Islamic and that such-like acts on the part of police have been condemned by the superior Courts. He added that there is no evidence on the question of commission of Zina nor the petitioner was found in an attempt to commit Zina at the spot ' and that there is no convincing evidence that there was any prostitution den in that house, therefore, it is a case of further inquiry. He referred to the case reported in Muhammad Saleem and another v. The State 1998 P.Cr.LJ. 2321, (FSC) and an unreported case bearing Criminal Miscellaneous- No,876-B of 1997 passed by -my learned brother Muhammad Nawaz Abbasi, J. As he then. Was, on 18-12-1997, in support of his arguments.

4. Which have been opposed by the learned Assistant Advocate-General who submitted that if there is an information about commission of a cognizable offence in a house the police is competent to conduct the raid but he could not refer any judgment of the superior. Court in support of this view. He further submitted that since the petitioner and his companions males and females were found in the house of a stranger, therefore, mere this fact is sufficient to attract the provisions of sections. 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979; that there is medical evidence on the record which supports the allegation of Zina and that the accused in this case admitted about the commission of Zina before the Illaqa Judicial Magistrate when they were being sent to Jail and also in presence of their own counsel as it reflects from the impugned order dated 9-12-2001 on the record.

5. Even at this stage, the point for examination is as to which offence is constituted on the basis of specific sentence used in connection with Yasir Arfat petitioner and Nadia co-accused because allegedly Yasir Arfat was wearing his clothes while Mst. Nadia was lying stark naked on the bed. It means that when the police raided at the house they were not even involved in kissing and embracing or lying in compromising position, anyhow this situation is to be thrashed out in detail at the time of framing of the charge but at present an attempt to commit Zina is under clouds and at trial the prosecution has to prove that the petitioner and his companion had already committed the Zina even that in the light of circumstantial evidence.

6. In order to attract the provisions of sections 13, 14 of the Offence of Zina (Enforcement of Hudood)

Ordinance VII of 1979, it is clear from the language used in this section that there must be a transaction of sale, hire or by a person with intention that such a person may be used for the purpose of prostitution or illict intercourse. Meaning thereby it is a fact which is to be proved by evidence, therefore, mere presence of males `and females in the house of a stranger is not sufficient to believe at the bail stage that the B females were sold by any one or hired by any one or bought by some one for illicit intercourse even otherwise the head of the raiding party did not disclose in his complaint that any pair was busy in the commission of Zina because either he found lying naked on the bed or two women or one male person sitting and waiting for the customer. So it is a case of further inquiry to the extent of the present petitioner as well.

7. As a consequence of the discussion above, the interim bail after arrest already granted to Yasir Arfat petitioner is confirmed subject to his furnishing fresh surety bond in the sum of Rs, 50,000 with one surety in the like amount to the satisfaction of the learned Sessions Judge, Rawalpindi. He is directed to attend the trial Court on each date till the disposal of the case.

' Petition is hereby accepted.