' This order is intended to dispose of the following bail applications:--
(i) Criminal Miscellaneous No,4940/B of 1998 namely Muhammad Naeem and Muhammad Amir v.
The State.
(ii) Criminal Miscellaneous No,5034/B of 1998 namely Mst. Shabnam v The State.
2. Sultan Ali, A.S.-I., Police Station Tibbi City, Lahore was on Gasht of the area on 9-9-1998 at 2-15 a.m. In the company of Niaz Ahmad, LHC, Zahid Younas H.C. And Muhammad Pervaiz LHC. He was present in Kucha Shehbaz when a secret information was imparted to him that House No,2207/A, Fort Road, Gujjar Gali, Tibbi City, Lahore was generally visited by an absconder named as Munir Ahmad son of Muhammad Sharif involved in Crime Case No,205 registered on 26-4-1998 under section 399/402, Pakistan Penal Code at Police Station Tibbi City, Lahore. He raided that house where Munir Ahmad absconder was not present. However, two male persons named as Muhammad Naeem and Muhammad Amir (both petitioners-accused) alongwith one Mst.
Shabnam petitioner-accused were found while preparing for Zina by consent. The owner of the house Mst. Rehana was also present from whose person an amount of Rs,400 was recovered who informed the aforesaid Sultan Ali, A.S.-I. That she had received the said amount from the male persons. He arrested the petitioners-accused as well as Mst. Rehana. Sultan Ali A.S.-I sent the complaint to the S.H.O. Police Station Tibbi City, Lahore and on its basis F.I.R. No,488, dated 9-9-1998 was registered at 2-25 a.m. Under Article 13/14/18 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. It is proper to express that police should have mentioned Article 10(2) of the said Ordinance, 1979 alongwith the said Articles.
3. The bail application of Mst. Rehana was accepted by the learned Additional Sessions Judge, Lahore on the ground that she was having a suckling baby. However, the bail application of these three petitioners-accused was dismissed on the ground that they were involved in a case of moral turpitude. The petitioners have filed this petition before this Court for their admission to bail.
4. The learned Advocate-General, Punjab, Lahore and the Deputy Superintendent of Police (Legal) were summoned to look into the matter as to how Sultan Ali A.S.-I. Could enter the house of Mst.
Rehana co-accused. The S.H.O. Brought the file of Crime Case No,205 registered on 28-4-1998 under section 399/402, Pakistan Penal Code at Police Station Tibbi City, Lahore. The address of Munir Ahmad absconder is mentioned as "son of Muhammad Sharif caste Arain resident of Chak No,6-1-AL District Okara". His remaining accused, who alongwith him were preparing to commit the dacoity while armed with lethal weapons, were arrested. A perusal of the said case file has made out that the police has not gone to the residence of Munir Ahmad in District Okara to arrest him.
Rather no independent efforts have been made and even the proceedings under section 87/88 of the Code of Criminal Procedure have not been initiated and conducted. Till today the challan in the said case has not been submitted. I have brought to the notice of the learned Advocate-General, Punjab and the Deputy Superintendent of Police (Legal), Lahore that it is a common practice with the police within the area of Police Station Tibbi that on the pretext of the arrest of an absconder accused the police would enter the house without warrant from where the absconder is not arrested who rather is not found therein and that some males and females are apprehended/arrested on the alleged ground of the preparation for commission of Zina by consent. The Deputy Superintendent of Police (Legal), Lahore conceded that this practice is going on in Police Station Tibbi, Lahore. I express that one or two criminal cases of such type are registered every year by the police wherein the accused is shown as the absconder to exercise the free hand. However, it is not permissible by law. As expressed above no independent efforts were made by the police to arrest Munir Ahmad absconder. Even under section 48 of the Code of Criminal Procedure the police has to grant the time to the ladies of the house to withdraw from the place and thereafter enter the house. Admittedly this procedural requirement was not followed and acted upon by the police. The Deputy Superintendent of Police (Legal) has assured this Court that this fact shall be brought to the notice of the Senior Superintendent of Police, Lahore for future working of police. When Munir Ahmad absconder was not present in the house the police was bound to leave the same without proceeding further in the matter and making search. Hence I hold that the entry of Sultan Ali A.S.-I. In the house of Mst. Rehana was not legally justified. Learned counsel for the accused rightly argued that it is a case of attempt of Zina by consent wherein maximum punishment provided is R.I. For five years, thirty stripes and fine which does not fall within the prohibitory clause and that even otherwise, there is no evidence that any amount was paid by the male accused persons to the female accused Mst. Rehana for providing Mst. Shabnam for the commission of Zina by consent for the purpose of prostitution. The production of Rs,400 before the police by Mst. Rehana in her own house cannot be held to be the price of the person of Mst.
Shabnam for the purpose of prostitution as everybody is expected to keep some amount in his/her pocket. This theory coined by the police has failed to impress me. Further the aforesaid confession of Mst. Rehana before the police, is inadmissible in evidence under Article 38 of the Qanun-e- Shahadat Order, 1984. The male accused have not been got medically examined for potency. My view is that it is a case of transgression of authority on the part of Sultan Ali A.S.-I. Who entered the house of Mst. Rehana without legal and factual justification under the pretext of the arrest of Munir Ahmad absconder who was not present there. Mst. Shabnam petitioner is a female whose case is also covered by the proviso to subsection (1) of section 497 of the Code of Criminal Procedure and I am at a loss to understand as to why this provision of law was ignored by the learned Additional Sessions Judge. I, therefore, hold that it a case of admission of the three petitioners to bail.
5. For what has been said above, I accept this application and admit Muhammad Naeem, Muhammad Amir and Mst. Shabnam petitioners to bail in the sum of Rs,10,000 (Rupees ten thousand only) each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Lahore with the direction to appear before the learned Trial Court on every date of hearing failing which the learned Trial Court may cancel the bail of the absentee accused person(s).