Through this single order, I intend to dispose of instant petition filed by petitioners Iqbal, Mst. Kainat, Mst.Yasmeen, Noor Muhammad, Mst. Nargis and connected BA No.292-P/15 filed by Aaozu-Billah, as both the petitions are outcome of one and same FIR No.167 dated 02.02.2015, u/ss 371(A)(B)/ 109 PPC, P.S. Pahari Pura, Peshawar.
2. As per prosecution case, the local police on spy information regarding running of brothel house, raided the house of petitioner Mst.Yasmeen where petitioners alongwith co-accused were arrested and a case vide FIR mentioned above was registered against the accused.
Arguments heard record perused.
3. Perusal of record reveals that the petitioners were arrested on spy information but the local police have made no efforts for obtaining services of independent witnesses despite presence of shops and other Abadi near the spot. Record is also silent about obtaining of search warrant from the competent Court in respect of raid conducted on the house of petitioners and thereby committed glaring illegality by not following the mandatory provision of Section 103 Cr.PC. Police functionaries, could not be permitted to flout the provisions of law, which otherwise, would amount to derailing the entire judicial system. The prosecution also failed to bring on record any written complaint regarding running of brothel house/ immoral activities by petitioners which could connect them with the commission of offence.
4. So far as applicability of Section 371-A & 371-B PPC are concerned, these apply to persons who sell or purchase any person with the intent that such person would be used for the purpose of prostitution or illicit intercourse. In the present case no material is available against accused to substantiate the commission of such offence as admittedly all the petitioners are closely related to each other i.e, mother, daughters, son, son-in-law and nephew so how a sister and brother or son and mother would commit sexual intercourse with each other. Besides, the petitioners were not found in any objectionable condition nor any customer was apprehended with them on the spot.
5. Apart from above, the medical report also negates the version of complainant/prosecution according to which no recent sexual assault has been found during examination of female petitioners which makes the case of petitioners of further inquiry u/s 497(2) Cr.PC. Besides, non- observance of legal requirements by the police, not only had given a strong impression about the malafide of police but it was also indicative of the fact that all was done by the concerned Police Officials in extreme haste, to cover up and shield the wrong, which they had done to the petitioners.
6. Petitioners have made no confession before the competent Court and they are behind the bar since their arrest, who are no more required to local police therefore, keeping them behind the bar would serve no useful purpose.
7. In view of what has been observed above, this petition alongwith connected Cr.MBA No.292-P/15 are allowed and all the petitioners are admitted to bail subject to furnishing bail bond to the tune of Rs.5,00,000/- (Five Lac) each with two sureties each in the like amount to the satisfaction of trial Court concerned, who shall ensure that the sureties are local, reliable and men of means.