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Criminal Miscellaneous No. 1005 of 1982, decided on 8th August, 1982.

--- S. 497-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/13/16 & 18-Bail, grant of No one witnessing petitioners committing or attempting to commit Zina with their female co-accused, but she was seen sitting in lap of one of peti tioners whereas other petitioners were playing with her breast-No mention made in F.I.R. regarding selling or buying of person of female co-accused for sinful purposes -Offences under Ss. 10, 13, 14 & 18 of Offence of Zina Ordinance, 1979 with which petitioners charged, held, required further inquiry, in circumstances-Petitioners allowed bail:

Anis Ahmad Insari for Petitioner.

Sahibzada Farooq Ali for the Complainant.

Rana Muhammad Anwar for the State.

This is an application for bail on behalf of Ashiq Hussain, Muhammad Bashir and Jamal Din in a case under sections 10/13/16 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at P. S. Kup, Multan, vide F.I.R. No. 354, dated 24th July, 1982.

2. The prosecution case is that there was a mukhbari to the that Chobara of Ashiq Hussain petitioner No. 1 was being used for adultery. The police raided the house on 24th July, 1982 and found that Nazir Ahmad, Muhammad Akram and Muhammad Jamal co-accused sere standing in the staircase of the chobara to watch the situation whereas the petitioners alongwith Mst. Anjuman Khatoon were present in the chobara. At that time, Mst: Anjuman alias Musarrat who was semi naked was sitting in the lap of Ashiq Hussain petitioner whereas Bashir Jamal Din were playing with her breast. Three empty bottles of Indian liquor and 3 empty tins were lying there. The police arrested the petitioners, co-accused and Mst. Anjuman on the spot. Empty bottles and the empty tins were also taken into possession.

3. Learned counsel for the petitioners submits that even if the allega tions are accepted at its face value, no offence under sections 10/13 and 14 of the offence of Zina (Enforcement of Hudood) Ordinance has been made out because it is not a case of selling nor buying person for the purposes of prostitution, etc. In the F. I. R., there are no allegations of selling or buying person for the purposes mentioned in the sections. As for section 18, learned counsel submits that since the lady was not naked it is not a case of attempt to commit Zina.

Learned counsel for the State has seriously opposed the application on the ground that it is a case of heinous nature. Mst. Anjuman was seen sitting in the lap of petitioner No. 1 when Muhammad Bashir and Jamal Din petitioners Nos. 2 and 3 were playing with her breast and as such it is not a fit case for grant of bail.

4. After hearing the learned counsel I find, be that as it may, the fact remains there that no one had seen the petitioners committing Zina with Mst. Anjuman. Mst. Anjuman being a co-accused there is no evidence of the commission of Zina. As for offences under sections 13 and 14 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, in the F.I.R., there are no allegations of selling or buying Mst. Anjuman for the purposes mentioned in these sections as for section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the only allegations are that Mst. Anjuman was seen sitting in the lap of Ashiq Hussain whereas Petitioners Nos. 2 and 3 were playing with her breast.

I am of the opinion that the question whether allegation against the petitioners, accepted at its face value, would make out the offences wit which they are charged or not, requires further enquiry. The petitioner are, therefore, allowed bail in the sum of Rs. 10,000 with one surety each in the like amount to the satisfaction of A. C./Duty Magistrate, Multan.

S. G. D Bail granted

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