Qasim Khan vs Sho etc.

Stereo. HC JD A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Writ Petition. No.9760-Q of 2021

Qasim Khan Vs. Station House Officer, Police Station Zahir Peer District Rahim Yar Khan and 10 others.

JUDGMENT

Date of hearing 07.02.2022

Petitioner Mr. Zafar Iqbal Ghullu, Advocate.

represented by:

State by: Jam Abdul Malik, Assistant Advocate General with Asad SI.

SADIQ MAHMUD KHURRAM, J. Through this petition

filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner namely Qasim Khan seeks quashing of the FIR No.793 of 2021, dated 24.10.2021, registered in respect of offences under sections 371-A and 371-B PPC. at the Police Station Zahir Peer District Rahim Yar Khan .

2.Precisely, the facts necessary for the disposal of the instant petition are that the FIR No.793 of 2021, dated 24.10.2021, was registered in respect of offences under sections 371-A and 371-B PPC.

at the Police Station Zahir Peer District Rahim Yar Khan on the

W.P No. 9760 -Q of 2021 2

complaint of Bashir Ahmad Sub-Inspector with the assertion that on 24.10.2021, Bashir Ahmad Sub-Inspector, was on patrolling , when information was laid before him that Muhammad Saleem and Nusrat Bibi were running a brothel , whereafter, a raid was conducted at the premises of Muhammad Saleem and Nusrat Bibi by Bashir Ahmad Sub-Inspector and Arshad, Fouzia, Ijaz Ahmed, Nusrat, Roquia Bibi, Muhammad Saleem, Rabia, Muhammad Amjad and Sonia were discovered having sex in different rooms. It was further recorded in the F.I.R that an amount of Rs.3800/- was recovered from the accused.

3.The learned counsel for the petitioner, inter alia, contended that the FIR No.793 of 2021, dated 24.10.2021, registered in respect of offences under sections 371-A and 371-B PPC. at Police Station Zahir Pir, District Rahim Yar Khan was liable to be quashed as it contained a false and invented narrative; that Bashir Ahmad, SI/the complainant of the case had no capacity to enter into the house without any permission;

that serious irregularities were committed while conducting the raid at the house of the petitioner; that the petitioner had not committed any cognizable offence hence, the continuation of the FIR shall be an abuse of process of law.

4.The learned Assistant Advocate General has fairly conceded that as Bashir Ahmad, SI/the complainant of the case had no capacity to enter into the house without any permission and as grave

W.P No. 9760 -Q of 2021 3

irregularities were committed while conducting the raid at the house of the petitioner, therefore, the continuation of the FIR shall be an abuse of process of the law.

5.I have heard learned counsel for the petitioner, the learned Assistant Advocate General and perused the record with their able assistance.

6.It is an admitted fact in the F.I.R itself that it was a dwelling house to which Bashir Ahmad Sub-Inspector proceeded along with the other police officials and raided the said premises. It is also admitted that the said house was not a public place, rather it was owned and in the possession of a private individual. In this case, neither search warrants were obtained by the police nor even any effort was made by the police in this behalf and furthermore, no respectable from the locality was associated to witness the raid proceedings. In such a situation, the alleged police raid 'cannot be better termed other than an “intrusion” and violative of the provisions of Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 and also repugnant to the provisions of the Holy Qur'an and Sunnah. Surah An-Nur, Verses 27 and 28, ordain:-

"27. O ye who believe: Enter not houses other than your own, until ye have Asked permission and saluted Those in them: that is Best for you, in order that Ye may heed (what is seemly)

W.P No. 9760 -Q of 2021 4

28.If ye find none. In the house, enter not Until permission is given To you; if ye are asked To go back, go back: That makes for greater purity."

It is difficult to countenance the clandestine and spurious manner in which law has been put into motion in this case. Both, the injunctions of Islam and the law of the land are intended to protect and preserve the Fundamental Right of the Dignity of Man and Privacy of his Home.

Both the concepts have to be read conjunctively. Privacy of home after all also enshrines the dignity of man. It may be noted that the word 'inviolable' has been used in the Constitution in respect of this right particularly. Violation of the privacy of one's house through arbitrary intrusion by the police, without the authority of law is certainly condemnable being repugnant to the concept of human rights relatable to both the dignity of man and privacy of the home. Section 103 of the Code of Criminal Procedure, 1898 is of vital significance to render search proceedings both transparent and creditable. The provisions of this section, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced: - "103.--(1) Before making a search. under this chapter, 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 so to do.

(2)The search shall be made in their presence, and a list of all things seized in the course of search and of the places in which

W.P No. 9760 -Q of 2021 5

they are respectively found shall be prepared by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(3)The occupant of the place searched, or some person in his behalf, shall in every instance, be permitted to attend during the search. and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.

(4)When any person is searched under section 102, subsection (3) a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.

(5)Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code. "(emphasis supplied)

The only other provision in the Code of Criminal Procedure, 1898 that deals with the search of a house is section 165 of the Code of Criminal Procedure, 1898 falling in Chapter IV which relates to the Investigation. Here too, a police officer has to be seized of an investigation in the first place and in aid of the same he has to have (a) reasonable grounds for believing that anything necessarily connected therewith is to be found in a place and (b) in his opinion same has to be obtained without undue delay, he may search or cause the search to be made for such thing provided he first records in writing the grounds of his belief and specify in writing, so far as possible the thing for which search is to be made. By no stretch of the imagination, this

section can be read to cover the raiding of a house to surprise any person engaged in sex. It deals with the search for evidence necessary for investigation where there is no time for taking out a warrant under section 96 of the Code of Criminal Procedure, 1898. Here also, compliance with the requirements laid down in section 103 of the Code of Criminal Procedure, 1898 is rendered mandatory. The West Pakistan Suppression of Prostitution Ordinance, 1961 provided for imposing strong checks on prostitution and running of brothels. Under that law, however, the power of search was restricted and exercisable only by a gazetted police officer and that too, under a warrant issued by a District Magistrate. Expounding the scope of fundamental right relatable to inviolability of dignity of man and privacy of the home, it is observed that with the incorporation of Article 2-A in the Constitution of Islamic Republic of Pakistan, 1973, a constitutional guarantee has been offered to all the Muslims in Pakistan that they shall be enabled to order their lives both in individual and collective spheres in accordance with the teachings of Islam as set out in the Holy Quran and the Sunnah. Every citizen has been rendered entitled to the basic freedoms and rights enunciated by Islam. In short, for the purposes of law and implementation of its provisions, no room has been made for the house search.

7.The legislators in their wisdom, having regard to the existing norms of the society, were conscious of the fact that if cases under

W.P No. 9760 -Q of 2021 7

such offences are permitted to be registered on spy information or on the complaints lodged by anonymous persons, this practice could have encouraged false reports to involve innocent men. or women for ill designs. Therefore the law was amended and section 496-B, Cr.P.C.

was inserted, providing definition of fornication, as:-- "Fornication:

(1)A man and a woman not married to each other are said to commit fornication if they wilfully 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."

Further, a person who is accused of submitting incorrect information or levelling the false accusation of fornication is to be dealt with under section 496-C, Cr.P.C., which provides that:-

"496C. Punishment for false accusation of fornication.

Whoever brings or levels or gives evidence of false charge of fornication against any person, 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:

Provided that a Presiding Officer of a Court dismissing a complaint under section 203C of the Code of Criminal Procedure, 1898 and after providing the accused an opportunity to show cause if satisfied that an offence under this section has been committed shall not require any further proof and shall forthwith proceed to pass the sentence. " The offence of fornication has been defined as above and section 203- C, Cr.P.C. provides that no court shall take cognizance of an offence

under section 496-B, P.P.C. except on a complaint lodged in a court of competent jurisdiction. By bare reading of F.I.R., it appears that the complainant tried to establish the allegation of fornication however for the same purpose only a private complaint could have been lodged under section 496-C, P.P.C. but in the instant case, the complainant and the Investigating Officer of the case, in order to avoid the charge of false accusation, did not file the complaint under section 496-B, P.P.C., as required. It has been observed that the story as narrated in the F.I.R. seems to be illogical, irrational and implausible. The police officials have not obtained the search warrants for raiding the house and committed glaring illegality in not following the mandatory provisions of section 103 of the Code of Criminal Procedure, 1898 and thus violated Article 14 of the Constitution of Islamic Republic of Pakistan, 1973. I see the flagrant violations of the provisions of law. It is not the case of the prosecution that the Investigating Officer even attempted to join any person from the public in the impugned raid proceedings, but he/they refused. In the absence of any such specific excuse or explanation, the police functionaries cannot be permitted to flout the provisions of law, which otherwise, would amount to derailing the entire judicial system. In this case, the police have involved the petitioner and others without any iota of evidence, by violating the statutory provisions of law, also encroached the fundamental right of the petitioner and others guaranteed under Article 14 of the Constitution of Islamic Republic of Pakistan, 1973, providing

that the dignity of man and subject to the law the privacy of the home is inviolable. Such fundamental rights are whenever violated and complained of, the court must step in and investigate under the constitutional jurisdiction to pass such order as may be found just, legal and equitable. Human dignity, honour and respect are more important than physical comforts and necessities and no attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace another person. thereby diminishing, decreasing and' degrading the dignity, respect, reputation and value of life and more particularly on the part of the police officials, who are otherwise bound to protect the rights of citizens, should be allowed to go with immunity.

8.From the perusal of sections 371-A and 371-B, P.P.C., it is very much clear that these provisions only would apply to persons who sell or purchase any person with the intent that such person would be used for the purpose of prostitution or illicit intercourse. In this case, no evidentiary material was available against the accused to substantiate the commission of the said offences. The evidence of sale and purchase of the person is also not available on the file. No eye- witness was available before conducting the raid, no search warrant had been obtained before raiding the house and police officials committed violation of section 103 of the Code of Criminal Procedure, 1898. Non-observance of all the above legal requirements, not only

W.P No. 9760 -Q of 2021 10

give a strong impression about the mala fides of the police, but it also is indicative of the fact that this all was done by the concerned police officials in extreme haste, to cover up and shield the wrong, which they had done to the petitioner and other persons, cited as accused in the instant F.I.R.

9.In view of the above, this Court is satisfied, that in the instant case, the prosecution was launched for ulterior motives and with mala fide just to harass the petitioner and others, whereas, there is no evidence available on the file for which that petitioner could be convicted in the case and even otherwise, the police officials have violated the law and fundamental rights protected by the Constitution of Islamic Republic of Pakistan, 1973. As such, it appears to be high time to take legal steps to keep the government functionaries and agencies within their lawful sphere, and in this case continuation of the investigation, prosecution or the trial would amount to sheer abuse of the process of law. When, on the face of it, F.I.R. is registered with mala fide or prosecution of a criminal case is patently against the provisions of law, or otherwise no case could possibly be made out, this Court has ample jurisdiction to quash the same, as no useful purpose would be served to keep such matters pending, rather the same would amount to an abuse of process of the court of law. The mere availability of alternate remedy would not constitute a bar upon the jurisdiction of this Court to entertain the instant petition and to

exercise its jurisdiction as the circumstances so warrant. When registration of F.I.R. and proceedings thereon, are patently illegal or illegality is floating on the surface, to refuse interference under Article 199 of the Constitution of Islamic Republic of Pakistan, would in fact amount to acting in aid of injustice and plea of alternate remedy loses its legal significance.

10.For what has been discussed, the instant petition is allowed and consequently the F.I.R. No.793 dated 24.10.2021 registered in respect of offences under sections 371-A and 371-B PPC. at the Police Station Zahir Pir, District Rahim Yar Khan and all the proceedings thereon, are quashed.

(SADIQ MAHMUD KHURRAM)

JUDGE

Raheel

Approved for Reporting

Judge