' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- The petitioners have approached this Court under Article 199 of the Constitution, mainly contending that the petitioners as well as Mst. Akhtar Sultana wife of petitioner No,1 are being victimized for political considerations and they may be provided protection by this Court. The petitioners have sought several other prayers from quashment of F.I.R.
No,68 of 2005 to the grant of damages and compensation. Inter alia, they contended that Mst.
Akhtar Sultana wife of petitioner No,1 is in illegal detention.
2. After hearing the learned counsel for the petitioners on 8-6-2005 we were of the tentative view that the entire petition in its present form was not maintainable. However, we found that liberty of Mst. Akhtar Sultana was at jeopardy and there was material on record suggesting mala fide on the part of prosecuting agency, therefore, we were of the opinion that interference was warranted by this Court, as in the ordinary course the adequate and expeditious remedy was not available. We, therefore, in 'addition to posing various questions on the point of maintainability of entire petition, observed that on the facts and circumstances of the case where liberty of Mst. Akhtar Sultana, wife of petitioner No,1 was involved, it would be appropriate to grant interim bail to her.
3. In pursuance of the order passed by us on 8-6-2005 surety was furnished and Mst. Akhtar Sultana was released, but we have been informed by the learned Advocates for the petitioners that she has been arrested in another F.I.R. No,157 of 1999, under section 380, P.P.C. Of Police Station Gulistan-e-Johar, Karachi.
4. Mr. Habib Ahmed, learned A.A.-G. Has stated that present case is under investigation and in view of the statement of Mst. Akhtar Sultana, before the Administrative Judge, Anti-Terrorism Courts, Karachi Division, to the effect that the alleged abductee in this case who is minor son of her sister, was never abducted and is living with her mother at Sukkur, there is likelihood that if the statement is found correct, no challan may be submitted against the petitioner No,1 and Mst. Akhtar Sultana accused in F.I.R. No,68 of 2005, Police Station Eidgah. He has further stated that under the directives of the learned Administrative Judge, the Investigating Officer proceeded to Sukkur but did not succeed in contacting Mst. Afsar Sultana, sister of Mst. Akhtar Sultana and mother of alleged minor abductee.
5. In view of the above statement of learned A.A.-G. We are of the opinion that the interim bail granted to Mst. Akhtar Sultana should be confirmed which we do accordingly.
6. At this stage, we would like to observe that, in spite of seeking several prayers in the petition there is no relief sought for grant of bail before arrest to petitioner No,1, but we treat the petition as petition/application seeking bail before arrest as well, and consequently petitioner No,1 Jam Saqi is also granted bail before arrest in F.I.R. No,68 of 2005, Police Station Eidgah, Karachi in the sum of Rs,50,000 (Rupees fifty thousand only) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
7. After hearing the learned counsel for the petitioners and in view of the admitted position that Mst.
Akhtar Sultana was arrested and petitioner No,1 Jam Saqi is wanted in F.I.R. No,68 of 2005, without sufficient material on record to the effect that they are actually involved in the alleged abduction of the minor child of Mst. Afsar Sultana and further information laid before us that after release of Mst. Akhtar Sultana in F.I.R. No,68 of 2005 she has been arrested in another F.I.R. Which was recorded in the year 1999 at Police Station Gulistan-e-Johar and that prior to these arrests, the petitioner Nol. Was arrested at Hyderabad in some other case and was released after rigorous public protests, we are of the opinion that there is substance in the apprehension of the learned counsel for the petitioners that the petitioners and Mst. Akhtar Sultana may be arrested in other blind F.I.Rs, which are available in thousands all over the Province. We have pondered over the point whether in exercise of our jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan read with Article 227 which provides that all existing laws shall be broght in conformity with the Injunctions of Islam as laid down in Holy Qur'an and Sunnah and in view of the judgment by Honourable Supreme Court in the case of Commissioner of Income Tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G. PLD 1991 SC 368, to the effect that as long as the existing statutes are not brought in conformity with. The Injunctions of Islam, the interpretation, application and enforcement of the existing laws, wherein discretionary judicial elements are involved, only that course would be adopted which is in accord with the Islamic Philosophy, its common law and jurisdiction, and further keeping in view the fundamental rights available to every citizen in this country and particularly the provisions contained in Article 4 which provides that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and Article 9 which provides that no person shall be deprived of life or liberty save in accordance with law and provisions contained in Article 14 of the Constitution to the effect that the dignity of man and subject to law, the privacy of home shall be inviolable, we can exercise the jurisdiction to provide protection to the citizens. We have reached to the conclusion that when there are extraordinary circumstances, this Court which is duty bound to protect the life, liberty,, honour and dignity of every citizen must take extraordinary measures. We are further of the view that when the statute law is not sufficient to meet a situation and provide protection to the citizens then the extraordinary jurisdiction of this Court under Article 199 of the Constitution must come to the aid of citizens. We are conscious of the fact that the Government and its functionaries are empowered to take action in accordance with the provisions contained in the statutes and in the realm of criminal administration of justice in accordance with the provisions contained in Criminal Procedure Code. In a cognizable offence a Police Officer is empowered to arrest a person, who is required in connection with the F.I.R. However, the question arises whether this is uncontrolled, unrestricted and unbridled jurisdiction or it can be exercised in such situations only where the spirit of the law is not violated.
8. We are of the view that if any action is taken with mala fide intentions then the powers exercised by the State functionaries cannot be treated as the powers which they can exercise with bona fide intentions in the ordinary course. Lord Acton has very aptly observed that "power corrupts and absolute power corrupts absolutely". Thus, while exercising B jurisdiction under Article 199 of the Constitution and confronted with the question of liberty of citizens we feel ourselves bound to ensure that the powers conferred on the State functionaries are exercised in accordance with the spirit of the law, in a bona fide manner and not otherwise. Even the most sacrosanct actions are bound to be struck down if there is mala fide, apparent on the record,. The arrest of Mst. Akhtar Sultana in a F.I.R. Recorded in the year 1999 at Police Station Gulistan-e-Johar C smacks of mala fide. Mr. Habib Ahmed, A.A.-G. Has informed at this stage that the F.I.R. In which Mst. Akhtar Sultana has been arrested is not a blind F.I.R. And she was nominated in the said F.I.R. The question arises as to why she was not arrested in an F.I.R. Which was recorded in the year 1999. We would like to observe that if any F.I.R. Is recorded against any person, the police officials should take action within a reasonable time. The reason being that the hanging of sword of Damocles over the head of a person for indefinite period cannot be countenanced. The Court shall always take adverse view of the action which is taken after lapse of 5 or 6 years and without explanation. In any case in this petition we are not going to grant bail to Mst. Akhtar Sutlana in the F.I.R. No,157 of 1999. She may submit a bail application in the said F.I.R. Before the Court of competent jurisdiction. The discussion was directed towards the apprehension of the learned counsel for the petitioners that the petitioners and Mst. Akhtar Sultana may be arrested in other blind F.I.Rs, The discussion was not directed towards the F.I.R. No,157 of 1999 of Police Station Gulistan-e-Johar.
9. At this stage, it would be appropriate to observe that under Islamic dispensation, Maqasid-ul- Sharia envisage, (1) Hifzuddin (protectioin of religion), (2) Hifz-ul-Nafs (protection of life), (3) Hifz-ul-Aqal (protection of mental faculty), (4) Hifz-ul-Maai (protection of property, (5) Hifz-ul-Nasl (protection of progeny) and (6)
Hifz-ul-Ird (protection of honour). In the present case, the question pertains to the protection of honour of the petitioner No,1 and his wife Mst. Akhtar Sultana. We are convinced that the honour and dignity of the petitioners and Mst. Akhtar Sultana are being violated for extraneous consideration by misuse of the police authority and consequently, keeping in view the rights guaranteed to the citizens under the Constitution read with the rights of citizens under the Islamic dispensation, appropriate direction be issued to the police administration.
10. For the foregoing reasons we direct that the entire police administration in the whole of Province of Sindh shall not arrest the petitioners and Mst. Akhtar Sultana, in any blind F.I.R. Or in any F.I.R.
Which is pending for more than one year against the petitioners and Mst. Akhtar Sultana, until and unless the necessary particulars of the F.I.R. Are placed before this Court and appropriate orders are sought from this Court.
11. A copy of this judgment should be sent to the L-G. Police Sindh with the direction to communicate the above direction to all the police stations in the Province of Sindh.
12. With the above orders/directions, the learned Advocates for the petitioners are satisfied and for the time being they do not press the other prayers. They seek permission to file appropriate civil/criminal proceedings against all concerned in respect of other prayers. The permission is granted.
13. The petition stands disposed of as above.