PLJ 2024 Cr.C. 1185
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
versus
STATE etc.--Respondents
Crl. Misc. No. 885-B of 2024, decided on 15.1.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 371-A & 371-B--Punjab Suppression of Prostitution Ordinance, (II of 1961), Ss. 3 & 13--Punishment for keeping a brothel house--Purpose of prostitution--Offences are cognizable pursuant to section 13 of said Ordinance which authorizes gazetted police officer to arrest accused of above offence without a warrant on receiving a complaint or committed within his view, but above law does not make liable any person who is having sexual intercourse with a prostitute--Therefore, willful sexual intercourse by a man and woman shall be viewed as an offence of fornication but not one under section 371A/371B PPC as explained in pargarph-6 above--For reference section 496B PPC is reproduced as under:
496B. Fornication: (1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.
(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.
Prosecution for offence of fornication can only be initiated through a complaint as regulated under section 203C of Cr.P.C. [P. 1191] A
Brothel House--
----“Place of public amusement”-- A brothel house cannot be termed in true sense a public place because its entry is restricted and controlled, that is reason section 14 of Punjab Suppression of Prostitution Ordinance, 1961 requires that Superintendent of Police, or any gazetted police officer specially authorized in writing in this behalf by District Magistrate, may enter any place and remove to prescribed place any girl who appears to be under age of eighteen years, if he has reason to believe that an offence punishable under section 3 has been or is being committed in respect of place or that a woman or girl, in respect of whom an offence under Ordinance has been committed, is to be found therein--If a brothel is being run secretly as a pocket of a place of public amusement or public entertainment or a gaming house then it would certainly be a public place and police on receiving information of somebody’s indulgence in any immoral activities or obscene acts can inspect that place without warrant--Place of public amusement or place of public entertainment have been defined in Punjab Suppression of Prostitution Ordinance, 1961. [P. 1191] B
Police Order, 2002 (10 of 2002)--
----Art. 4(1)--Power of police--It is trite that police without obtaining search warrant cannot enter into any premises but later its authority to enter into places of disorderly character without warrant was introduced through Article 4(I) of Police Order, 2002--Police can safely enter into places or resort of loose and disorderly character without warrant and if found somebody is indulged in obscene acts at public place, he can be prosecuted under section 294 PPC. [P. 1192] C & D
PLD 2013 Federal Shariat Court 42 & 1991 PCr.LJ 9.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 371-A & 371-B--Bail after arrest, grant of--Allegation of for keeping brothel house for purpose of prostitution--oth petitioners were reportedly found in objectionable condition in a house of “D” when police raided upon, therefore, they cannot be made accused for offences under sections 371A/371B PPC, but for fornication under section 496B PPC if they were having sexual intercourse with each other and prosecution whereof shall be initiated through filing a complaint under section 203C of Cr.P.C--It has further been observed that no medicolegal report is available which could support act of recent intercourse, neither stained clothes nor any other forensic material was collected from place of occurrence--Even no linked-material was made available to show “K” as a prostitute and house of “D” was being used as brothel, so as to attract provisions of Punjab Suppression of Prostitution Ordinance, 1961 against her--It is also a missing fact as to whether house of “D” was a place of loose or disorderly character to justify entry of police without a warrant; therefore, criminal liability of both petitioners shall be determined by trial Court who are at present not found connected with offences of FIR, i.e., 371A/371B PPC-- All these facts, prima-facie, call case of present petitioners for further inquiry falling within ambit of sub-section (2) of Section 497 Cr.P.C. [Pp. 1193 & 1194] E & F
2008 MLD 722, 2009 YLR 60, 2012 PCr.LJ 638, 2014 MLD 599,
2023 SCMR 734, 2023 SCMR 999 & 2021 SCMR 63.
Mr. Shah Nawaz Shah, Advocate for Petitioners.
Mr. Ikram Ullah Khan Niazi and Ms. Maida Sobia, Deputy Prosecutors General for State.
Date of hearing: 15.1.2024.
Order
Through this petition under Section 497, Cr.P.C., petitioners Khalida Bibi and Atiq-ur-Rehman have sought post arrest bail in case FIR No. 1534 dated 26.12.2023 registered under Sections 371A & 371B, PPC at Police Station Mangtanwala, District Nankana Sahib.
2. It was the case of prosecution that on the information of a stool pigeon, police raided upon the house of one Dildar Abass which was reportedly being used for the purpose of prostitution, where the petitioners were found in objectionable condition who were apprehended and a cash amount of Rs.1500/-was recovered from petitioner Khalida Bibi which she has allegedly received for prostitution.
3. Heard. Record perused.
4. Bail was mainly sought on the ground that Sections 371A & 371B of Pakistan Penal Code, 1860 (PPC) are not attracted against the persons who are found in objectionable condition in a brothel house or premises with the consent of owner/possessor, and even running a brothel house is not an offence under Sections 371A/371B, PPC which only deal with the marketing for selling and buying of women for the purpose of prostitution and it does not compass the consensual act of two individuals gratifying sexual lust while in a spaced-facility. A challenge was also thrown on exercise of power by the police to enter into such premises without a warrant, what to talk of registration of FIR.
5. Learned Deputy Prosecutors General state that prostitution being a vice is menace to the society and for its prevention police is authorized under the Police Order, 2002 to enter in a suspected place without a warrant and appropriate legal action can be initiated against the persons indulged in immoral activities. They were of the view that even Section 294, PPC is also attracted which prohibits obscene acts at public place.
6. Prostitution has been described as “the world's oldest profession, but it is prohibited in Islam; therefore, it is essential to see what the legislature has done for suppression of prostitution. The spirit of Sections 371A & 371B, PPC views only that man in culpability-catch who sells or purchase a woman for the purpose of employing her or knowing that she may be employed for prostitution or illicit intercourse or for unlawful or immoral purpose and that man can simply be termed as marketing manager, broker or agent. Sections 371A/371B, PPC, particularly explanations therein, make the picture clearer. Both sections are reproduced for reference as under:
371A. Selling person for purposes of prostitution, etc. Whoever sells, lets to hire, or otherwise disposes of any person with intent that such a person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person shall at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty-five years, and shall also be liable to fine.
Explanations: (a) When a female is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.
(b) For the purposes of this section and Section 371B, “illicit intercourse” means sexual intercourse between persons not united by marriage.
371B. Buying person for purposes of prostitution, etc. Whoever buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty-five years, and shall also be liable to fine.
Explanation: Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.
Keeping in view the above sections of law and expression as calculated, it is the situation that when a man and a woman is found busy in sexual intercourse in a brothel house, they cannot be made subject of above sections. Similarly, when a man is running a brothel, he will not also be charged under Section 371A or 371B, PPC if he simply offers the service of a prostitute for sexual intercourse to a man, barring a situation when any person is actually found busy in a brothel house for sale, purchase or hiring etc. of a woman with the intent that she may be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person shall at any time be employed or used for any such purpose.
7. Now if Sections 371A/371B, PPC cannot be stretched against the copulation in a brothel house or for running a brothel then which law would be applicable to prohibit such vice. The Punjab Suppression of Prostitution Ordinance, 1961 is in fact the apt law which specifically prohibits keeping of brothel or allowing any place to be used as a brothel. Such ordinance defines ‘brothel’ and ‘prostitution’ as under:
“brothel” means any house, part of a house, room or place in which a prostitute resides or carries on prostitution or any place or institution where facilities are known to be available for prostitution.
“prostitution” means promiscuous sexual intercourse for hire, whether in money or kind
As per Section 3, the law prohibits running of brothel in following manner:
Punishment for keeping a brothel or allowing any place to be used as a brothel.--(1) Whoever--
(a) keeps or manages or acts or knowingly finances or takes part in the financing of, or assists in, the management of a brothel, or
(b) being a tenant, lessee, occupier or person in charge of any premises, knowingly permits such premises or any part thereof to be used as a brothel, or
(c) being a lessor or landlord of any premises, or the agent of such lessor or landlord, lets the same or any part thereof with the knowledge that it is intended to be used as a brothel,
shall be punished with imprisonment of either description for a term which may extend to two years and with fine, which may extend to one thousand rupees.
(2) Where, in any prosecution of a tenant, lessee, occupier or person in charge of any premises under this section, it is found that such premises or any part thereof have been used as a brothel, it shall be presumed, unless the contrary is proved, that he knowingly permitted such use.
The Punjab Suppression of Prostitution Ordinance, 1961 however, deals with following offences in all:
Section 3; Punishment for keeping a brothel or allowing any place to be used as a brothel.
Section 4: Punishment for soliciting.
Section 5: Punishment for permitting prostitution in places of public amusement.
Section 6: Punishment for living on earnings of prostitution.
Section 7: Punishment for causing, encouraging or abetting prostitution of a girl under sixteen.
Section.8: Punishment for procuration.
Section 9: Punishment for importing any woman or girl for prostitution.
Section 10: Punishment for keeping any woman or girl for prostitution.
Although above offences are cognizable pursuant to Section 13 of the said Ordinance which authorizes the gazetted police officer to arrest the accused of above offence without a warrant on receiving a complaint or committed within his view, but above law does not make liable any person who is having sexual intercourse with a prostitute. Therefore, willful sexual intercourse by a man and woman shall be viewed as an offence of fornication but not one under Sections 371A/371B, PPC as explained in Pargarph-6 above. For reference Section 496B, PPC is reproduced as under:
496B. Fornication:
(1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.
(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.
Prosecution for offence of fornication can only be initiated through a complaint as regulated under Section 203C of Cr.P.C.
8. A brothel house cannot be termed in true sense a public place because its entry is restricted and controlled, that is the reason section 14 of the Punjab Suppression of Prostitution Ordinance, 1961 requires that the Superintendent of Police, or any gazetted police officer specially authorized in writing in this behalf by the District Magistrate, may enter any place and remove to the prescribed place any girl who appears to be under the age of eighteen years, if he has reason to believe that an offence punishable under Section 3 has been or is being committed in respect of the place or that a woman or girl, in respect of whom an offence under the Ordinance has been committed, is to be found therein. However, if a brothel is being run secretly as a pocket of a place of public amusement or public entertainment or a gaming house then it would certainly be a public place and police on receiving information of somebody’s indulgence in any immoral activities or obscene acts can inspect that place without warrant. Place of public amusement or place of public entertainment have been defined in the Punjab Suppression of Prostitution Ordinance, 1961 as under:
“Place of public amusement” shall mean any place, enclosure, building, tent, booth or other erection, whether permanent or temporary, where music, singing, dancing, or any diversion or game or the means of carrying on the same, is provided, and to which the public are admitted either on payment of money or with the intention that money may be collected from those admitted, and shall include a race-course, circus, theatre, music hall, billiard-room, bagatelle-room, gymnasium or fencing school:
“Place of public entertainment” shall mean any place, whether enclosed or open, to which the public are admitted and where any kind of food or drink is supplied for consumption on the premises for the profit or gain of any person owning or having an interest in or managing such place, and shall include a refreshment-room, eating-house, coffee-house, liquor-house, boarding-house, lodging-house, hotel, serai or tavern, or wine, beer, spirit, arrack, toddy, bhang or opium shop:
9. It is trite that police without obtaining search warrant cannot enter into any premises but later its authority to enter into places of disorderly character without warrant was introduced through Article 4(I) of Police Order, 2002 which is as under:
(l) enter and inspect without a warrant on reliable information any public place, shop or gaming-house where alcoholic drinks or narcotics are sold or weapons are illegally stored and other public places or resort of loose and disorderly characters.
Therefore, Police can safely enter into places or resort of loose and disorderly character without warrant and if found somebody is indulged in obscene acts at public place, he can be prosecuted under Section 294 PPC which is reproduced as under:
294. Obscene acts and songs:
Whoever, to the annoyance of others,--
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place,
shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
However, for applicability of Section 294, PPC, the parameters must be kept in mind as given in judgments reported as “Amjad Ali and another versus The State” (PLD 2013 Federal Shariat Court 42); “Riffat Ali Barq versus S.H.O., Police Station, Muzaffarabad and 4 others” (1991 PCr.L.J 9).
10. Concluding above discussion, it can safely be held that on receiving credible information Police can enter into places or resort of loose and disorderly characters without warrant and then depending upon the nature of offence are authorized to initiate criminal action either through registration of FIR for an offence under Sections 371A/371B, PPC or under the Punjab Suppression of Prostitution Ordinance, 1961, or through complaint under Section 203C, Cr.P.C. for fornication or investigation with the permission of Magistrate for offences under Section 294, PPC.
11. In the case in hand both the petitioners were reportedly found in objectionable condition in a house of Dildar Abass when the police raided upon, therefore, they cannot be made accused for offences under Sections 371A/371B, PPC, but for fornication under Section 496B, PPC if they were having sexual intercourse with each other and prosecution whereof shall be initiated through filing a complaint under Section 203C of Cr.P.C. It has further been observed that no medicolegal report is available which could support the act of recent intercourse, neither stained clothes nor any other forensic material was collected from the place of occurrence. Even no linked-material was made available to show Khalida as a prostitute and house of Dildar Abass was being used as brothel, so as to attract provisions of the Punjab Suppression of Prostitution Ordinance, 1961 against her. It is also a missing fact as to whether house of Dildar Abass was a place of loose or disorderly character to justify entry of police without a warrant; therefore, criminal liability of both the petitioners shall be determined by learned trial Court who are at present not found connected with the offences of FIR, i.e., 371A/371B, PPC. In such a situation it is trite that bail must be granted; in support whereof, some reported cases are referred in this respect; “Zahid Hussain and other versus The State” (2008 MLD 722); “Shafqat Ali and another versus The State” (2009 YLR 60); “Ghulam Qadir Faraz alias Babar versus Station House Officer, Police Station Saddar Kamoke and 2 others” 2012 PCr.LJ 638); “Iqra Hussain versus S.H.O. Police Station Nawab Town and another” (2014 MLD 599).
12. The Supreme Court of Pakistan in a case reported as “Muhammad Nawaz alias Karo versus The State” (2023 SCMR 734), with reference to Section 497 Cr.P.C., has held as under:
“This Court has time and again held that liberty of a person is a precious right, which cannot be taken away unless there are exceptional grounds to do so. Merely on the basis of bald allegations, the liberty of a person cannot be curtailed.”
Similar view has been taken by the Supreme Court of Pakistan in case reported as “Noor Kamal and another versus The State and another”
(2023 SCMR 999). All these facts, prima-facie, call the case of present petitioners for further inquiry falling within the ambit of sub-section (2) of Section 497, Cr.P.C. as enunciated in cases reported as “Jahanzeb and others versus State through A.G. Khyber Pakhtunkhwa Peshawar and another” (2021 SCMR 63), “Salman Zahid versus The State through P.G. Sindh” (2023 SCMR 1140) and “Gul Muhammad versus The State” (2023 SCMR 857).
13. In view of what has been discussed above, the petition in hand is allowed and the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs. 100,000/- each with one surety each in the like amount to the satisfaction of the trial Court. The above observations are tentative in nature based on available material and will not prejudice the case of either party in any manner.
(A.A.K.) Bail allowed
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