Shafaqat Ullah son of Manzoor Ahmed, the petitioner seeks post-arrest bail in case FIR No, 303 dated 03-6-2009, registered with Police Station Margalla, District Islamabad for offences under Sections 371.A, 371-B and 496-B PPC.
2. The case had been registered at the instance of Asjid Mahmood SI, the complainant, wherein he had alleged that on 03.6.2009, in response to a spy information and after obtaining search warrant from the Maga Magistrate, he had constituted a raiding party and had conducted a raid at the guest house, established in House No, 1097, Street No, 67, Sector G-9/4, Islamabad; the petitioner (accused) alongwith a female (Shinan Bibi) was found naked in a room, from where four condoms (two used and the remaining two unused) were recovered; some other men and women were also apprehended in naked condition, from different rooms of the guest house; all the accused had gathered there, for committing zina.
3. The petitioner had been arrested on 03-6-2009 and is in custody ever since. His applications for post-arrest bail had been turned down by the learned Judl. Magistrate Section-30, Islamabad on 05.6.2009 and the learned Addl. Sessions Judge, Islamabad, on 09.6.2009, respectively. Thereafter, he moved this Court for post arrest bail, vide Crl. Misc. No, 250-B/2009, however, the said application was withdrawn on 16-6-2009, even before notice could be issued to the State. Hence, the instant petition.
4. I have heard Mr. Muhammad Ilyas Siddiqi Advocate, the learned counsel for the petitioner, Raja M. Aleem Khan Abbasi, Deputy Attorney-General for Pakistan and have perused the record brought by Muhammad Sharif SI, Police Station Margalla, District Islamabad.
5. It is prosecution's own case, that the petitioner and other co-accused were present in the guest house for the purpose of committing zina. There is nothing to indicate that the offence of zina had infact been committed or that the accused persons were in the process of committing zina at the time, when raid had been conducted. There is nothing on record to suggest that the two allegedly used condoms were sent for chemical analysis, so as to determine the contents thereof or for semen grouping, Likewise, the, petitioner had never been subjected to any medical examination, so as to ascertain that he was capable of performing sexual act. A bare reading of Sections 371-A and 371-B PPC, reveals that the same are applicable in case of buying and selling a person for the purpose of prostitution, etc. It is not the case of the prosecution that the petitioner was found indulging in any such buying and selling. In this backdrop, applicability of Sections 371-A and 371-B PPC is a matter of further inquiry, within the meanings of sub-section (2) of Section 497 Cr.P.C.
Insofar as Section 496-B PPC is concerned, the said penal provision does not attract the pfohibitory clause of Section 497(1) Cr.P.C.
6. Resultantly, this petition is allowed and the petitioner is admitted to post arrest bail, subject to furnishing surety in the sum of Rs,50,000/-, in cash (as desired by the learned counsel for the petitioner), to the satisfaction of the learned trial Court.
7. The observations made herein above are only tentative in nature for the limited purpose of disposal of this bail application and are not designed to influence the course of the trial.