IFTIKHAR AHMAD CHEEMA, J.- Petitioners Kashif and Muhammad Nasir are accused of the commission of offences under sections 13/14 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide FIR No. 151, dated 26.4.1998 registered with Police Station Baghdad- ul-Jadeed, Bahawalpur.
2. Precisely, the allegation against both the petitioners, as spelt out from the FIR mentioned above, is that a prostitution den was being run by one Seema who is a notorious harlot of the area and was engaged in the immoral activity for a pretty long time. It is alleged that petitioners paid Rs.
1000/- each for the supply of women to Arshad and Khalil Ahmad, and accordingly, to women were offered to the petitioners, who took them in a room and committed 'zina' with them at the relevant time. Complainant reported the matter to the police, and the petitioners were surprised by the raiding party headed by Qadir Bakhsh, Sub-Inspector Police Station Baghdad-ul-Jadeed.
According to the FIR, at the relevant time, both the petitioners were standing naked when they were apprehended by police.
3. Malik Muhammad Farrakh Mehmud, Advocate appearing on behalf of' the petitioners vehemently contends that there is nothing on the file which may tend to show that petitioners were engaged in the commission of 'zina' at the time of their arrest by police, rather, on the prosecution's on showing they were found naked, which might be an immoral act, but does not constitute the offence of 'zina' within the meaning of section 4 of the Zina Hudood Ordinance. Further contends that there is no proof of hiring these girls for prostitution by the petitioners and the payment of Rs.
1000/- each to the incharge of brothel house Mst. Seema, Adds that premises was raided without any search warrant; petitioners were not got medically examined and no case under the Prohibition Order was registered by police, particularly, when they had consumed liquor, therefore, the prosecution case is nothing more than a cock and bull story.
4. Learned counsel representing the complainant and the State frankly concedes that no offence under section 10(2)l of the Zina Hudood Ordinance is made out against the petitioners.
5. As regards offences under sections 13 and 14 of Hudood Ordinance, 1979, learned counsel for the petitioners contends that the only material against his clients is their confession, but that to is inadmissible, because it was made before the Police.
6. Arguments of the parties heard at length. I have carefully gone through the contents of the FIR and the relevant sections with which the petitioners are charged. After careful consideration of the arguments and the facts of the case, I am of the view that, prima facie, the offence of 'Zina' is not attracted in the facts and circumstances emerging in the instant case, inasmuch as, it is not the case of the prosecution that petitioners were in fact seen in a compromising position with the hired girls at the time of their arrest. Mere fact that petitioners were standing naked at the relevant time of their arrest hardly constitutes the offence of 'Zina'. As regards sections 13 and 14 of the Offence of Zina Ord., no independent and credible material is available with the prosecution which may tend to show that the girls were hired for prostitution or 'Zina' by making payment of Rs. 1000/- by petitioners. Prosecution solely relied on the statement of Mst. Seema the incharge of the brothel house and the confession of the petitioners, but unfortunately, that to is inadmissible because it was made before or in the presence of the police.
7. In view of the above position, I am inclined to admit the petitioners to bail, and direct that they shall be released on bail subject to their furnishing bail bonds in the sum of Rs. 30,000/- each with to sureties such in the like amount to the satisfaction of the trial Court.
Needless to add that observations of this Court are purely tentative in nature, and would not in any manner prejudice the case of either side during the trial.