' On receipt of the information regarding the presence of certain males and females, who had allegedly gathered there for committing Zina, Sona Khan, A.S.-I., Police station Cantt., D.i. Khaki atonzwith polnce party, at 1-00 a.m., raided the house of Muhammad Hussain, petitioner. During the raid three females namely Mst. Zeenat, Mst. Shahnaz and Mst. Bushra and two males namely, Ghulam Shabbir and Inayatullah were found in one room whereas Muhammad Hussain was present in the other room. All the aforesaid ladies and males were arrested and booked for having committed offence punishable under Article 13/18 of the Offences of Zina (Enforcement of Hudood)
Ordinance.
2. Accordingly a 'Murasila' was drafted and sent to the Police Station Cantt., D.I. Khan where a case was registered against the petitioners vide F.I.R. No, 522 on the same date.
3. All the six accused applied for bail to the Senior Civil Judge/Judicial Magistrate, D.I. Khan (Saleem Jan) who, dismissed their bail petition by his order, dated 13-11-1999.
4. Aggrieved by the said order the petitioners approached the Court of Additional Sessions Judge, D.I. Khan (Muhammad Iqbal Khan) who, vide his,. Order, dated 27-11-1999 rejected their bail petition.
5. Hence the instant bail petition.
6. Admittedly, petitioner-accused Ghulam Shabbir and petitioner accused Mst. Zeenat Bibi hail from District Sargodha and are husband and wife as is clear from the Nikah Nama' (year 1995) copy Annexure-G. Mst. Shahnaz and Mst. Bushra, petitioner-accused are also the residents of Nawab Colony, District Sargodha, and are their relatives. Petitioner-accused Muhammad Hussain is the owner of the house wherefrom he and the rest of the petitioners were arrested. Inayatullah, petitioner-accused is working as a Carpenter with the said Muhammad Hussain. No evidence, worth the name, has been collected so far by the 1.0., to show that the petitioners had assembled in the house for committing Zina. Tr shall, therefore, be seen during the trial as to whether the petitioners had gathered therefor committing any of the crime both with which they have been charged. Beside this it is yet to be seen that while searching the house of petitioner Muhammad Hussain the provisions of section 103, Cr.P.C. Had been duly complied with. Section 103, Cr.P.C.
Makes it mandatory that before making a search the officer or other person, about to make it, shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them in this respect so to do. Is also obligatory that the search shall be made in their presence and a list of the things seized in the course of such search and of the places, in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. On the contrary, perusal of the F.I.R. Would disclose that the search was not made, stricts senso, in 'accordance with the provisions of section 103, Cr.P.C. In that two witnesses of the locality, to witness the search, had not been associated. It is, however, alleged that one Bakhtawar had witnessed the search. In Muhammad Azam Appellant v. The State Respondent PLD 1996 SC 67 a Full Bench of the august Supreme Court had held:- "Bare perusal of section 103 shows that it applies with full force when search is to be made of place which is in a locality. It can be said that section 103 is relatable to place and not to person. If place is known where search is to be made and that place is situate in a locality which is inhabited by people then it is necessary to join two or more respectable persons from that locality to witpess search."
7. It is not disputed that the place from where the petitioners-accused were arrested is situated in Imamia Colony, D.I. Khan and, therefore, witnessing of the search by two respectable persons of that locality was obligatory requirement of law. The local police, on the contrary, was accompanied by one Bakhtawar to witness the search who, as alleged, had been proved to have been convicted under the Goonda Ordinance. Resultantly, he cannot be accepted as the respectable person of that locality. Secondly, witnessing of the search by a solitary witness is not due compliance of the requirement of law i,e, section 103, Cr.P.C.
8. It may be stated here that the defective mode adopted by the police in connection with the raid search of the house has the Lase of the petitioners arguable for the purposes of bail.
9. . Without going deep into the merits of the case at this stage I accept this petition and direct that the petitioners-accused shall be released forthwith, if not required in any other case, provided they furnish bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar of this Court who shall see that the sureties are men of means having suffncient properties in their names and belong to a settled areas of D.I.
Khan/Sargodha. Attested copies of their property documents/National Identity Cards shall be obtained and placed on file for record.
10. The petitioners-accused were granted bail and directed to be released by a short order and these are the reasons for the said order.