' This application has arisen out of F.I.R. No,204/94, dated 3-9-1994 registered at Police Station Toba Tek Singh at the instance of Javed Ali, Sub-Inspector on the basis of statement made to him by Asghar Ali son of Muhammad Din resident of Chak No, 148/G.B. The F.I.R. Was registered for the offences under section 338-A, P.P.C. And Article 10 of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. During the investigation offences under sections 420/468, 471, P.P.C. Were added for the alleged forgoing of Nikahnama by the accused persons. The bail application of the petitioner was dismissed by Additional Sessions Judge, Toba Tek Singh on 27-10-1994.
2. The complainant Asghar Ali, in his application, had alleged that some 6-1/2 months before his making of application on 11-8-1994 he heard the whispering in the Deorhi of Mukhtaran Bibi accused. Lantern was ablaze and in the light of the said lantern he and his companions Abdul Latif, Abdur Rashid and Muhammad Aslam saw Mukhtaran Bibi and Muhammad Mehmood petitioner committing Zina. Thereafter the petitioner allegedly called Shamsher Ali accused to commit Zina and they also saw Shamsher All and Mukhtaran Bibi accused committing Zina. It was further alleged that the accused had been indulging in such acts publicly, Mukhtaran Bibi got pregnant and got admission in District Hospital Toba Tek Singh where Isqat-i-Hml took place.
3. Learned counsel for the parties have been heard and the case file has also been perused by me.
Two of the witnesses of the commission of Zina by the present petitioner and Mukhtaran Bibi accused and also by Shamsher All and Mukhtaran Bibi are very closely related to her. Asghar Ali was the real brother of her husband Inayat Ali, whereas Muhammad Aslam son of Shah Muhammad was his first cousin. Inayat Ali died on 22-8-1993 and in his lifetime Mukhtaran Bibi accused had got a case registered against Asghar All complainant, his brother Nanha and their father Muhammad Din under sections 337-A(1), 354/34, P.P.C. On 23-7-1993 regarding the alleged occurrence of 20-7-1993. The complainant who was an accused person in the said case had a natural grouse against Mst. Mukhtaran Bibi accused and after the death of Inayat Ali, Mukhtaran Bibi accused had lost all possible protection which her husband could afford as against the complainant and other accused in case F.I.R. No, 144 registered 23-7-1993 (Supra). There are copies of three different applications made by Asghar Ali, complainant. One application was made to S.S.P. On 11-7-1979; the other was made to D.I.-G., Faisalabad on 10-7-1994 and the ultimate application on which the F.I.R. No,204 was registered was made to S.H.O. Saddar Toba Tek Singh on 11-8-1994. The application made in the month of July, 1994 are not having the details as are given in the application, dated 11-8-1994. In application made to D.I.-G. It was simply alleged that the commission of Zina was witnessed sometimes prior to the making of the application, whereas in the application made to S.S.P. On 11-7-1994 the time of occurrence was also given as 9 p.m. But the lantern being ablaze, emitting light was not mentioned. Surprisingly these two applications were looked into by Muhammad Yaqoob, S.I. On 16-8-1994. Application, dated 11-8-1994 on the basis of which F.I.R. Supra was lodged contained very lucid description of the occurrence. The said description was not given in the application made in the month of July and these two applications were also before Mr. Javed Ali, Sub-Inspector when he got the case registered and he gave a note on each of these applications that F.I.R. No,204 had since been registered on 3-9-1994. In one of his reports the date of his signatures is prima facie interpolated. Photo copies of these applications be retained and a notice be issued to Mr. Javed Ali, S.I. Police Station Saddar Toba Tek Singh to appear in Court personally and explain as to why action should not be taken against him for fabricating the details of the alleged occurrence. The S.H.O. Police Station Saddar Toba Tek Singh be also issued notice as to why F.I.R. Was not registered on the basis of applications disclosing the commission of a cognizable offence on 11-7-1994 and on 18-7-1994 when these applications were brought before him.
4. The alleged occurrence was witnessed by the complainant and witnesses through a small opening in the shutters of the door. They allegedly peeped through the same.
5. The preamble of Ordinance VII of 1979 reads as under:- "Whereas it is necessary to modify the existing law relating to Zina so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah;"
"Seeking of sin of others is a sin itself' and practice of peeping or searching for sins of others has been disapproved and depricated in Islam and if this practice of registering the cases under Ordinance VII of 1979 continues, on the allegation of peeping through, the police shall wield too long a handle and the objects of the Ordinance shall be defeated. Moreover the very texture of Society may disintegrate and right to privacy of any citizen in his home would remain under constant threat.
6. "Isqat-i-Haml" in itself is not a proof against the petitioner that the pregnancy had taken place out of Zina committed by the petitioner. Offences under sections 338-A, 420, 468, 471, P.P.C. Do not fall within the Prohibitory clause. The allegations as contained in the F.I.R. Have been discussed (Supra) and there are not reasonable grounds for believing that the accused had committed the alleged offence of Zina but that there are sufficient grounds for further inquiry into his guilt.
7. The petition is accepted and the bail is granted to the petitioner subject to his furnishing bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Toba Tek Singh.
8. It is noted with dismay that the lucid description of the occurrence as mentioned in the F.I.R.
Amounts to pornography and appears to be the writing of a sick and obsessed mind. Asghar Ali, complainant is illiterate as he has affixed his thumb-impression. Copy of this order be sent to Inspector-General of Police Punjab, Lahore who may look into the matter for taking some steps to avoid such pieces of pornography becoming a part of public record.