1. ' By this common order I intend to dispose of Criminal Bail Application No,327 and Criminal Bail Application No,328 of 1997 as common question of facts and law are involved in both the cases.
2. ' Petitioners Huma, Malka, Lalima, Syed Muhammad Khair and; Amir Hamza have filed these applications for grant of bail as their applications as such were rejected by learned Additional Sessions Judge-IV, Quetta vide order. Dated 9-10-1997.
3. ' Brief facts for filing of these applications are that on the report of Ghulam Dastagir, who is S.H.O. Of Police Station Crime Branch an F.I.R. No,45 of 1997 was registered on 25-9-1997. It was alleged that the applicants are running a brothel house and leading an immoral life. In fact it was alleged that Mst. Lalima and Abdullah are running a brothel house at Shah Zaman Road. Quetta where other customers are visiting frequently. The police raided the house of Abdullah and Lalima. It is alleged that during raid from western room petitioner Huma and accused Syed Muhammad Khair were found in a position without wearing their trousers. In the next room accused Mir Hamza and Mst.
4. Malka were found. The owner of the'den is Lalima and Abdullah who were also present there. It is alleged further that accused paid Rs,500 for each girl and the S.H.O. Arrested the accused persons.
5. A case was registered under sections 10, 11, 13, 16 and 18 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979.
6. ' Heard Messrs Kamran Murtaza, Musthaq Anjum and Ch. Muhammad Rafique for petitioners and Messrs Ahmad Khan Lashari, Advocate-General and Raja Rab Nawaz, for State.
7. ' Counsel for petitioners contended that prima facie prosecution case is false because Mst. Huma is a married woman and has a suckling baby of 9 months with her whereas Mst. Malka is also married to Khairullah and has two children, out of whom one is a six months suckling baby. Neither any Zina has been committed with them nor they were found in a compromising position and medical reports are negative. It was lastly contended that the cases of petitioners fall under proviso (i) of section 497, Cr.P.C., therefore, they are entitled to be released on bail.
8. ' The plea of bail, however, was Opposed by the State counsel. Messrs Advocate-General and Raja Rab Nawaz contended that Mst. Lalima and accused Abdullah are running a den where they supply girls to customers. On such in formation the police raided their house and found in one room Mst. Huma with accused Syed Muhammad Khair and in other room Mst. Malka with Amir Hamm. Mst. Huma and accused Muhammad Khair were found without wearing any Shalwars as such bail can not be granted to them.
9. I have considered the arguments so advanced. The police has registered a case under sections 10, 11, 13, 16 and 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Perusal of section 10 shows that it relates to Zina or Zina-bil-Jabr. The prosecution case is not of Zina-bil-Jabr, therefore, this section has been wrongly mentioned because prima facie the doctor has not supported that Zina has been committed. Section 11 relates to kidnapping, abducting or inducing woman to compel for marriage etc. Except section 13 the other sections are prima facie not attracted.
10. However, section 13 reads: "(13)Selling person for purposes of prostitution, etc.--- Whoever sells lets for hire, or otherwise disposes of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes and shall also be liable to fine."
11. ' From the personal search of Mst. Huma and Mst. Malka nothing has been recovered according to police. Thus, prima facie they have not received any amount for prostitution. Therefore, it is a case of further inquiry whether section 13 does apply to them or not. However, police has recovered an amount of Rs,2,000 from Mst. Lalima for which evidence is yet to be recorded whether the same were given by the accused to her. Since the doctor's report is negative and A it is also not denied that Mst. Huma and Malka have suckling babies, therefore, I am inclined to grant them bail. It is indeed strange that when the police entered the premises the accused Huma and Khair Muhammad seeing police did not put on their trousers and allowed the police to see them in naked condition. Under the circumstances and particularly in view of madico-legal certificates to my mind it is a case of further inquiry, as such I grant bail to accused persons namely Huma wife of Fareed, Malka wife of Khairullah, and Lalima wife of Muhammad Gul, Syed Muhammad Khair and Amir Hamza. They shall be so released if not required in any other case provided each of them furnish security in the sum of Rs,20,000 (Rupees twenty thousand) with one surety and P.R. Of like amount to the satisfaction of Additional Registrar of this Court.