' The petitioner is the Chief Executive of Rauf Towers Hotel situated in Sialkot and seeks quashment of F.I.R. No,215, dated 9-5-2004 under sections 10/ 13/14 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and section 216, P.P.C. Registered at Police Station Murad Pur, Sialkot on the report of Faiz Ali, S.-I. Of the said police station.
2. According to the prosecution allegations set up in the F.I.R. On 9-5-2004 at 1-30 a.m. Faiz Ali, S.-I.
Of Police Station Murad Pur District Sialkot along with three A.S.-I.s and three constables were on petrol duty when they received secret information that Amjad Hussain son of Rehmat Ullah a proclaimed offender was present in Room No,313 of Rauf Tower Hotel and consequently the police party reached the said room and knocked at the door which got opened and then the boys present in the room told Amjad Hussain proclaimed offender to escape who succeeded in making good his escape through the window. The three persons, namely, Yasir son of Pervaiz Iqbal, Shamail son of Maqbool and Fawad son of Muhammad Munir along with a girl, namely Mst. Saba were present inside the room in naked condition. Yasir and Saba were busy in Zina and she told the police party that prior to Yasir, Shamail and Fawad culprits had also committed zina with her and she further stated. That Muhammad Ahsan son of Sher Ahmad and his wife Mst. Shabana in connivance with Nadeem son of Muhammad Younis Hotel Manager and other hotel staff were running a brothel den in the hotel and that she had been hired by Yasir etc. For Rs,6,000 and that two other girls, namely, Mst. Shabana Azarn and Mst. Anjum were also engaged in the said prostitution business. All the said culprits were arrested and consequently this case was registered.
Mst. Saba was medically examined and her vaginal swabs were sent for Chemical Examiner whose report confirmed presence of semen on them. Being aggrieved of the allegations in the F.I.R. That the hotel premises were used as a brothel house the petitioner has filed the present petition.
3. It has been mainly argued on behalf of the petitioner that Room No,313 is situated on an upper storey of the hotel and it is not possible for a person to escape from a window in the upper storey and that the entire story of presence of Amjad Hussain proclaimed offender in the said room has been contrived as a ruse to conduct an illegal raid at the hotel premises and that in case Amjad Hussain the alleged proclaimed offender had been present he could not have escaped from Room No, 313 of the hotel in the presence of police party comprising of seven persons and that the entire case has been made out against the alleged culprits on the incriminatory statement of Mst. Saba one of the accused which amounts to confession before the police and as such is inadmissible in evidence and that Mst. Saba had been madically examined without seeking her consent or order of the Magistrate in violation of Chapter 25 Rule 22 of the Police Rules 1934 and thus the report of the medical officer and that of Chemical Examiner cannot be read in evidence and that there is no legal incriminating material to support the allegations set out in the F.I.R.
4. According to the allegations set out in the F.I.R. The raid had been conducted during mid-night i.e, at 1-30 a.m. In Room No, 313 of Rauf Hotel with the object to arrest Amjad Hussain a proclaimed offender who on the arrival of the police party escaped through the window of the said room. The very number of room suggests that the said room is situated in an upper storey and it could not be possible for Amjad Hussain proclaimed offender to escape through the window on an upper storey had he been present there. Furthermore it is not understandable how in the presence of police party comprising of seven persons Amjad Hussain proclaimed offender was able to make good his escape. It has also been stipulated in the F.I.R. That when the police party knocked at the door of Room No,313 its door itself opened meaning thereby that the door had not been locked or bolted from inside. In case a proclaimed offender or the accused along with Mst. Saba in naked condition were present inside the room then at least they would have taken some pre-cautions to bolt or lock the same from inside and would not have left it to open on a slight knock. Thus it is apparent that the story of the presence of Amjad Hussain proclaimed offender has been made out to create an excuse to raid Room No,313 of the hotel without seeking any search warrant. The conduct of raid by the police party apparently is in violation of the principle laid down in Riaz v. Station House Officer Police Station, Jhang City and two others (PLD 1998 Lahore 35). The facts revealed in the F.I.R.
That the three accused and a girl were present in Room No, 313 and the door which got opened on a slight push is contrary to the normal course of human conduct and as such do not inspire- confidence and reflect the whole truth. The entire case has been built up against the accused on the basis of an incriminating confession of Mst. Saba before the police. The learned Addl. A.-G. After going through the police record has agreed that except the statement of Mst. Saba that she had been subjected to Zina or the hotel premises were being used as brothel house, there is no other evidence regarding the commission of the said offence except the Medico-legal certificate of Mst.
Saba which is suggestive of the fact that she had been subjected to the commission of Zina available on the file.
5. Rule 22 of Chapter 25 of the Police Rules, 1934 stipulates that no examination by a medical officer of a living woman person shall be made without her consent or except under the orders of a Magistrate directing to make such examination and in all cases where the police considers it necessary, the woman shall be taken before a Magistrate for orders. The learned Addl. Advocate- General has also conceded that in this case on the police file the consent of Mst. Saba for her medical examination or the written order from a Magistrate addressed to the Medical Officer directing him to make such an examination is not available. Thus it is obvious that the medical examination of Mst. Saba had been made in violation of the said Rule and any proceedings which are conducted against the Rules has no legal value and thus the medical conducted against the Rules cannot be used as legal incriminating evidence against her. Therefore, any report of the Chemical Examiner about the vaginal swabs taken in consequence of the medical examination conducted in violation of law cannot be used as incriminating material against Mst. Saba Akhtar.
6. The police in this case had conducted the raid without obtaining the search warrants and made out the case on the basis of material which is inadmissible in evidence. Therefore, this case has no legal basis to proceed further and consequently the F.I.R. In question is quashed.
F.I.R. Quashed.