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Criminal Bail Application No. 1271 of 1985, decided on 24th October, 1985.
‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 13, 14 b 18‑‑Bail‑‑Magistrate, who supervised raid, not attested Mashirnama of arrest‑‑Name of Magistrate also not appearing in charge‑sheet‑‑Magistrate present at time of arrest of accused but his statement under S. 161, Cr.P.C. also not recorded‑‑Case, mishandled by Investigating Agency appearing to be with mala fide purpose‑‑Accused granted bail in circumstances.
Sardar Muhammad Ishaq for Applicant.
Abdul Ghafoor Mangi, Asstt. A.‑G. for the State.
Applicant Nawabuddin alongwith others is being tried for the offences punishable under sections 13, 14 and 18 of Zina (Enforcement of Hudood) Ordinance, 1979.
2. Briefly the case of the prosecution as given in the F.I.R. is that on 4‑10‑1985, A.S.I. Addalat Khan of Special Squad C.P.O. Sind Karachi got spy information that one Muhammad Sharif alias Muhammad Javed is running a prostitution den at his residence situated at Buffer Zone Bungalow No. R/1174 Area 15/B, Karachi. The police party went there and found four persons including 8 ladies present in the above den for the purpose of prostitution. Applicant Nawabuddin and Mst. Shaheen were in a room in suspicious condition.
3. Mr. Sardar Muhammad Ishaque, Advocate appearing for the applicant argued that applicant was not found in any objectionable 8ondition with Mst. Shaheen, therefore, the provision, of section 13, 14 and 18 of Zina Ordinance do not attract to the facts of this case. His contention is that there is no evidence against the applicant that he was running prostitution den or hired a girl for immoral purpose. He has referred to the case reported in 1984 P Cr. L J 930.
4. Mr. Abdul Ghafoor Mangi, the learned Asstt. A.‑G. has candidly stated that he has no objection to the grant of bail. His contention is that at the most applicant could be responsible for the offence under section 18 of Zina and there is only evidence of attempt against him which is not punishable with 10 years.
5. I have gone through the papers. The raid in this case was supervised by 1st Class Magistrate but unfortunately the Investigating 44 Officer has not cared to get the Mashirnama of arrest attested from the Magistrate. He has even not recorded the 161, Cr.P.C. statement o A Additional City Magistrate, who according to the F.I.R. was present when applicant and others were arrested from the bungalow The learned Asstt.A.‑G. also pointed out that the name of the Magistrate also does not appear in the charge‑sheet. The purpose of taken Magistrate to a den was to ensure the proper and honest investigation of the case, but in this case though according to prosecution Magistrate was present, but he has not been examined, I observe that these serious type of cases are being mishandled by the Investigating Agency with some mala fide purpose. The Magistrate is an important witness in this case since his evidence has not been brought by the prosecution. Therefore, the benefit of doubt for the purpose of bail can be given to accused. Without going into the merits of the case and looking to the manner in which the case has been handled. I admit the applicant to bail on furnishing one surety in the sum of Rs.25,000 and P.R. bond in the like amount to the satisfaction of Nazir of this Court.
M. A. K. Bail granted.
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