The petitioner has approached this Court for his release on bail in a case registered against him vide FIR No.87 dated 25-7-1991; Police Station Balakot under section 5/10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He filed an application for bail in the Court of MIC Balakot and thereafter before Sessions Judge, Mansehra, who rejected his bail application vide orders dated 13-8-1991 and 21-8-1991 respectively.
2. The learned counsel for the petitioner contends that the petitioner was taken into custody by the police on 25-7-1991 and was kept in illegal confinement. His formal arrest has been shown on 26-7- 1991 and was produced for confessional statement before the Magistrate on 27-7-1991 and as such the confessional statement carries no value. He referred to the affidavit of Mst. Noor-un-Nisa the complainant wherein she has stated that she has not been subjected to Zina by the petitioner, and that she has been allowed bail, as such on the principle of consistency the petitioner is entitled to be released on bail.
3. The learned State counsel opposed the bail application but when he was confronted about the illegal confinement of the petitioner by the police he conceded that the police could not detain him without the orders of the competent Court.
4. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
5. On 21-12-1991 this case was fixed for arguments. The learned counsel for the petitioner brought to the notice of the Court that the petitioner was taken into custody on 25-7-1991 and was not produced before the Magistrate within 24 hours required by law. Accordingly the Investigating Officer was summoned to explain as to why the petitioner was not produced within 24 hours before the Magistrate. In compliance the Investigating Officer appeared today who stated that the petitioner was apprehended on 25-7-1991 but was only associated with the investigation and was formally arrested on 26-7-1991 and on 27-7-1991 he confessed his guilt before the Magistrate. This practice is not only illegal but also highly abuse of police powers. Under section 61, Cr.P.C. The police is under legal obligation to produce the accused within 24 hours before the Magistrate and without the orders of the Magistrate under section 167, Cr.P.C. The detention would amount to illegal detention. As there is no plausible explanation for the detention of the petitioner from 25-7-1991 to 26-7-1991, therefore, I would allow this application. The petitioner shall be released on bail on furnishing bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.