' IJAZ AHMAD CHAUDHRY, J.---This order will dispose of Criminal Miscellaneous No, 4437-B 2007 filed by Mst. Aysha, Mst. Asia, Mst. Komal, Mst. Nahyya, Sana, Muhammad Tariq son of Muhammad Ismail and Maratab All petitioners, Criminal Miscellaneous No, 4403-B, of 2007 filed by Muhammad Tariq son of Muhammad Anwar, Muhammad Saleem and Maqsood Ahmad petitioners, Criminal Miscellaneous No, 4539-B of 2007 filed by Safdar petitioner and Criminal Miscellaneous No, 4592-B of 2007 filed by Muhammad Tariq son of Muhammad Anwar and Jafar petitioners in case F.I.R.
No,501, dated 9-6-2007 registered under sections 371-A/371-B, P.P.C. At Police Station Township District Lahore on the complaint made by Sajjad Hussain A.S.-I.
2. The brief facts in the F.I.R. Are that on 9-6-2007 at 4-15 a.m Sajjad Hussain A.S.-I: Township Lahore was present along with other police officials at Abadali Road in connection with patrolling when he received call from telephone No,15 that in Guest House bearing No,382/A-II Johar Town near Muhammad Ali Chowk, some men and women were committing zina, whereupon police arrived at the pointedplace and found that in a room four males and three females were busy in committing zina. The names of said persons are mentioned in the F.I.R. Similarly, in another room, three males and two females were also busy in committing zina. They have also been named in' the F.I.R.
Moreover, Safdar one of the petitioners was present on the counter of Guest House who disclosed 'that he was' running the brothel house as Manager in the shape of Guest House on the direction of Muhammad Farooq owner of guest house. The owner was not apprehended, who' fled away from the spot on seeing the police party.
3. Learned counsel for Muhammad Tariq son of Muhammad Anwar, Muhammad Saleem and Maqsood Ahmad petitioners contends that the allegation against them is that they were present in a second room and were committing zina with Mst. Nahyya and Sana, which at the most constitutes the offence of fornication falling under section 496-B, P.P.C. And the registration of the F.L R. Is illegal as they could only be prosecuted under sections 203C, Cr.P.C. Which provides that no Court shall take cognizance of an offence under section 496-B, P.P.C. Except on a complaint lodged in a Court of competent jurisdiction; that the case against the petitioners is of further inquiry and they may be allowed bail.
4. Learned counsel for the ladies petitioners has contended that they are women and are behind the bars since 10-6-2007; that the challan has not been submitted in the Court so far; that raid was not conducted at the public place and search warrants were also not obtained and no recovery was effected from any of the petitioners; that no medical examination has been got conducted by the police; that no private witness has been shown during the investigation; that the case of the ladies falls within the ambit of newly added second proviso inserted in section 497(1), Cr.P.C. And they are not guilty of an offence relating to terrorism, financial corruption and murder, hence they may be allowed bail; that under section 156B, Cr.P.C. Investigation could not be conducted by any officer not below the rank of SP and the lady accused could not be arrested by the police without permission of the Court. Relies upon "KLR 2005 Cr1. Cases 43".
5. It is contended on behalf of Mst. Aysha petitioner that the police had no authority to enter in the house or the private premises and the raid was illegal; that it is a case of further inquiry.
6. Learned counsel for Safdar petitioner contends that registration of the. F.I.R. Is illegal and unlawful as sections 13/14/10 of the Offence of Zina (Enforcement of Hadood) Ordinance, VII of 1979 have been deleted by the Legislature only for the purpose that the case should not be registered and only private, complaint can be filed wherein the Courtcan only order for the arrest of the accused, but the police has no authority to arrest the accused under the garb of registration of the FIR; it is also contended that the story of the prosecution is not believable and it is imaginary that the accused were committing zina with open doors of the rooms; that it is not specifically mentioned that who (male. Accused) were committing zina with whom (lady accused); that from the facts and circumstances of the present case, there is no likelihood of the conviction of the petitioner, who may be allowed bail at this stage. It is also contended that there is no evidence on the record about the selling and buying of women for prostitution and the F.I.R. Was illegally registered under 'sections 371A and 371B, P.P.C.; and that the investigation is complete, the person of the petitioners is not required by the police for any further investigation and it being a case of further inquiry, they are entitled to the concession of bail, which cannot be withheld merely as a punishment.
7. Learned Deputy Prosecutor General on the other hand opposes all these applications on the ground that the offences falling under sections 371A and 371B, P.P.C. Are prima facie made out, which are punishable with 25 years' imprisonment and the offences fall within the prohibitory clause; that both the offences are cognizable and the police has rightly registered the F.I.R. Against the petitioners, who belong to different localities, but failed to explain their presence in the guest house and relationship between them; that the lady accused had refused to appear before the Medical Officer and due to this reason no medial examination could be conducted that the challan has been submitted in the Court and the trial can be concluded within a short span of period as there are only six P. Ws. In the present case.
8. I have heard the learned counsel for the petitioners at length and also perused the record with their assistance. All the petitioners are between the ages of about 18 to 26 years, who are residents of different places and they were arrested from .The White Guest House i,e, place of occurrence.
Except for Tariq Aleem son of Muhammad Ismail petitioner, Zafar Iqbal co-accused and Sana petitioner, the other accused/petitioners in their statements/first version before the police at the time of their arrest admitted that they had come there for sexual lust whereas Safdar petitioner is Manager of the said Guest House and the allegation against him is that he was running the same as a den after receiving amounts from the customers. They have failed to allege any mala fide or enmity against the police to falsely implicate them in the present case. From the facts and circumstances of the case and the evidence collected by the police, offences under sections 371A and 371B, P.P.C. Are made out, which are cognizable and fall within the prohibitory clause of section 497, Cr.P.C. It is settled law that if the one offence is cognizable, the police can register the case under the said offence whileincluding the non-cognizable offences as well. The contention of the learned counsel for the petitioners that at the most offence under section 496-B, P.P.C. Is made out and the case could not be registered is repelled. Report under section 173, Cr.P.C. Has been submitted in the Court. The contentions of the learned counsel for the petitioner that the investigation was illegal, the police could not enter the guest/dwelling house without search warrants and the action of the police was against the injunctions of Islam have already been dealt with and repelled by this Court in Khushi Muhammad v. Station House Officer, Police Station Makhdoom Rashid Multan and another (2006 PCr.LJ 34). The relevant portions are reproduced below:-- "The serious allegation of commission of zina has been levelled against the petitioner and other co-accused. Either in the contents of the writ petition or during the course of the arguments addressed by the learned counsel for the petitioner it has not been denied that the petitioner was not caught red handed while indulged in the commission of zina along with the co-accused, which is a cognizable offence, but only the advantage of the Islamic teachings referred to above is being taken to avoid the punishment. Ibne Abbas (RAA) said: There is no major sin if one asks for forgiveness, and there is no minor sin if one persists in repeating it. The petitioner wants to take advantages of verses 27 and 28 of Sura An-Nur but himself has failed to obey the Injunction of Allah contained in the very next verses Nos. 29 and 30 quoted therein-below. Stories and history in the Quran are meant to teach us today for our everyday life and was never meant only for the previous generations. Our generation, at this time of our life, needs this guidance and this kind of justice now as much as the previous 'generations needed them and even more. Only the true believers will hear and obey, while the hypocrites and disbelievers will try to find excuses not to follow the rules and commandments of God. The Quranic justice is not good enough for them or in other words, for them, God is not enough nor His book, the Quran. Even for those who might have missed 24:17, God gave us another great lesson in 49:6:- "O you who believe if a wicked person brings news to you you shall first investigate lest you commit injustice towards some people out of ignorance, then become sorry for what you have done." ' which ordains that it is necessary for the government functionary to scrutinize the matter reported by the bad character people before proceeding against the accused, but does not prohibit action into true allegation. In the present case the petitioner hasfailed to show that the accusation levelled against him was altogether false and it was meant only to humiliate him. He was caught red handed at the spot along with the girl and the co-accused. The petitioner has not given any explanation that how the girl who was not related to him in any manner was present in his house.
Even otherwise the matter requires recording of evidence and the petitioner can prove his innocence at the trial when he will be afforded, opportunity to cross-examine the P.Ws."
"In view of above discussion. I am not inclined to interfere in the matter merely on the assertions of the learned counsel for the petitioner or the case-law cited by him that while reporting the present occurrence the various injunctions. Of Islam regarding peeping or entering into others houses were not complied with by the complainant and other witnesses as he himself was also bound to obey the ordains of Islam prohibiting to commit zina, which is not only a sin to be punished by the Almighty Allah on the Day of Judgment, but it has also been declared an offence penalized in this world. Moreover, in the cited judgments it has not been discussed that in the state of burning of the house, its dismantling or if some offence is being committed, one can enter the house without permission. (Ref. Tafseer Mazhari Urdu Vol. VI page 320)."
"If the police officials had received any information that some cognizable offence was being committed, it could enter into the premises without obtaining any permission for the Magistrate as if they wasted time in obtaining permission then an important piece of evidence was likely to be spoiled. Moreover, the witnesses will explain that under which circumstances they entered into the house and they had seen the occurrence when they will appear before the Court for recording of their evidence after submissions of report uncle. Section 173, Cr.P.C. And the petitioner can cross- examine them, but at this premature stage it cannot be said that the police officials had transgressed their powers while registering the case."
"As far as the contention of the learned counsel for the petitioner that the complainant cannot be the Investigating Officer is concerned, this argument is repelled as the Hon'ble Supreme Court of Pakistan in PLD 1997 SC 408 has settled that the F.I.R. Cannot be quashed merely on the ground that the complainant was also the Investigating Officer. Moreover, under section 4 of the Cr.P.C. The purpose of the investigation is to collect evidence only and the petitioner has also failed to showthat what prejudice has been caused to him in his defence. The Courts cannot allow the continuation of the crimes under the garb of technicalities and cannot exercise extraordinary relief in favor of such criminals, who fail to satisfy the Court about their innocence."
' In such circumstances I find that Mst. Aysha, Mst. Aasia, Mst. Komal, Mst. Nahyya, Maratab Ali, Muhammad Tariq son of Muhammad Anwar, Muhammad Saleem, Maqsood, Jafar and Safdar petitioners have failed to make out a case of further inquiry and allege their false implication in the present case for any ulterior motive. There are chances of repetition of the offence, if they are allowed bail.
9. As far as case of Sana petitioner is concerned, from the perusal of the police file it is crystal clear that she is real sister of Zafar Iqbal co-accused. Both of them are aged about 16/17 and 18/19 years.
In their statements before the police at the time of their arrest, they stated about their innocence in the present case and according to them they were only working in the said guest house as servants as their father had contracted second marriage and they were living at Thokar Niaz Baig.
The Manager Safdar before the police on the very first day also stated that both of them were innocent and they were only working in the Guest House. I find that there is some doubt in the prosecution case about the involvement of Sana petitioner and it cannot be believed that she in the presence of her real brother in the other room was indulged in the commission of zina. Zafar Iqbal in the present case (sic). Similarly Muhammad Tariq son of Muhammad Ismail Barki has already taken a specific stand that he was a friend of Safdar petitioner and only, come there to meet him, but he was not involved in any such activities. Thus criminal Miscellaneous No, 4437-B of 2007 is partly allowed and Sana and Muhammad Tariq son of Muhammad Ismail Barki petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 each with two sureties each in the like amount to the satisfaction of the learned trial Court. However, the applications to the extent of the other petitioners are dismissed.
10. Before parting from this order SSP Investigation is directed to take necessary action against the Investigating Officer and the other police officials, who failed to associate or arrest Muhammad Farooq, the owner of Guest House, the main accused and shall submit report to this Court within a fortnight about the action against the delinquent police officers/officials through the Deputy Registrar (J) of this Court.
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