Through the present petition, Muhammad Siddique petitioner seeks post arrest bail in case FIR No, 370 dated 20.6.2007, registered under Sections 371(a) and 371(b) PPC at Police Station City Hasilpur.
2. Brief facts of the case are that on 20.6.2007 at about 5.00 p.m. police party headed by Kausar Mehmood SI, on a street information that co-accused of the petitioner Altaf Hussain was running a brothel house and is involved in the prostitution business, conducted raid at the brothel house and all the accused persons, namely, Altaf Hussain, Ghulam Farid, Muhammad Siddique, the present petitioner, Mst. Shukran, Mst. Humera and Mst. Amiran Bibi were apprehended alongwith currency notes.
3. The petitioner applied for the grant of bail after arrest before the ]earned Additional Session Judge, Hasilpur who vide his order dated 14.9.2007 dismised the same, hence this bail application.
4. Learned counsel for the petitioner submits that no incriminating evidence connecting the petitioner with the alleged offence was collected at the place of occurrence. He further submits that the transaction i,e,, handing over of currency notes in lieu of prostitution was recovered by the police from the co-accused Altaf Hussain and Ghulam Farid, took palce at the open palce outside the house, as such, question of prostitution does not arise. He argues that in view of Article 38 of the Qanoon-e-Shahadat Order, 1984 no confession made to a police officer shall be provided as against a person accused of any offence as such, this type of evidence is inadmissible in law. He further submits that the petitioner is in Jail for the last eight months and there is no independent evidence which could connect the petitioner with the commission of the offence under Section 371(a) and 371(b) PPC. No money was recovered from the petitioner.
5. Learned Additional Prosecutor General has vehemently opposed this bail application by maintaining that as per the police record Muhammad Siddique was caught red handed by the police while making payment to Mst. Humera and Mt. Amiran. He further submits that policy has no enmity with the present petitioner to implicate, him falsely in this case. Case of the petitioner falls within the prohibitory clause of Section 497 Cr.P.C., therefore, the petitioner does not deserve any leniency to grant him bail.
6. I have heard both the learned counsel and perused the record. There is no denying the fact that the petitioner is nominated in the FIR but I am afraid that there is no such evidence on record which could prove the fact that the petitioner was involved in the commission of prostitution business.
The whole FIR is based on the confessional statements of the accused but such a confession by the accused before a police officer is not admissible in evidence as is clear from the plain language of Article 38 of the Qanoon-e-Shahadat Order, 1984 that no confession made to a police officer shall be proved as against a person accused of any offence. The petitioner was neither apprehended performing any sexual act nor any money was recovered from him. There is no independent evidence against the petitioner to connect him with the alleged offence. Simple apprehending the petitioner from the place of occurrence does not necessarily mean that the petitioner was involved in the prostitution business. In order to-establish the fact that the petitioner is involved in the prostitution, there has to be cogent evidence and some incriminating material to connect him with the alleged offence and in the absence of either independent evidence or handing over of money by the petitioner was not seen by any one, as such, for all intents and purposes, the case against the petitioner is that of further inquiry into his guilt.
7. The mala fide of police is undoubtedly proved that the police have deliberately shown the arrest of all the accused persons outside the house premises and recovered transacted money of this illegal business. As a matter of prudence it does not appeal to one's mind and there is no rational to the fact that such like business of prostitution is done outside the premises of the house rather this type of business is always done inside the house.
8. In the circumstances of the case, I do not find any reason in not admitting the petitioner to bail.
The petitioner is, therefore, admitted to bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/-with two sureties in the like amount to the satisfaction of the trial Court.
The petitions tands disposed of.