' CHAUDHARY MUHAMMAD TAJ, J.---This revision petition has been filed against the order passed by the Shariat Court of Azad Jammu and Kashmir on 20-8-2003 whereby observations in paras 8 and 9 were made.
2. The facts are that a case under sections 10/18 of Offence of Zina (Enforcement of Hudood) Act, 1974 was registered against the respondents who were apprehended and moved for their bail before the trial Court through an application which was rejected and thereafter they moved before the District Court of Criminal Jurisdiction, Rawalakot which was also dismissed. They filed their application before the Shariat Court of Azad Jammu and Kashmir where the same was accepted and the bail was granted with the observations made in paras. 8 and 9. This revision petition has been filed for setting aside the aforesaid observations.
3. Raja Ibrar Hussain, the learned Advocate-General, contended that the observations made in the paras. Under discussion are against law as according to him, the law provides the arrests without warrants in cognizable cases. It was also argued that the law also provides that without registration of a case in certain cases the arrest can be made, therefore, the learned Chief Justice in the Shariat Court has travelled beyond his jurisdiction and the order, therefore, runs counter to the law.
4. Mr. Abdul Rashid Abbasi, the learned counsel appearing from the opposite side, opposed the contentions of the learned Advocate-General and defended the order including observations made in paras. 8 and 9 of the order. Though this revision petition did not challenge the legality of the bail order passed in favour of the respondents, however, we understand that in the situation when the bail order is not attacked the respondents are not aggrieved in respect of judging the legality of the observations in the light of law.
5. We have heard the learned counsel for the parties and also gone through the record. This revision petition has been filed to set aside the observations made in paras. 8 and 9 of the impugned order whereby the accused-respondents were allowed bail. It would be essential to see as to what observations were made. The relevant paras are usefully reproduced:-- "8. Over action of the police officer to raid the house and enter in the rooms at night, without warrant and Magistrate, is misuse of his authority. Moreover, the police officer who raided the house and arrested the accused persons was not competent to do so without the case being registered by the law and order police. The police officer has exceeded his authority in raiding the house and has further aggravated the position by arresting the petitioners when he knew that they belonged to the same department and had come to Rawalakot to attend a Workshop and were also not found in objectionable position on one bed. The position is further worsened when doctor gave a negative report.
9. Under the normal course of circumstances it is beyond the authority of a police officer to enter into any dwelling place at mid-night and interfere in privacy of the people without any proof of any offence being committed there. It is responsibility of the police to protect the honour, dignity and privacy of the citizens rather than humiliate them on frivolous report of persons having personal vendetta against the inmates."
6. After careful consideration of the aforesaid observations made in the above para., it shows that the learned Chief Justice in the Shariat Court has held that a police officer without a warrant from Magistrate cannot enter in the room and also cannot arrest an accused person without a case being registered, therefore, it was held that the police officer has exceeded his authority in raiding the house and thereafter arresting the respondents. Before judging the legality of the aforesaid observations, we would like to look into the relevant provisions of law as to how the arrest of a person is made particularly entering the dwelling house or room at night time.
7. It may be mentioned that Chapter V of the Code of Criminal Procedure (hereinafter to be referred as the Code) provides as to how arrests are to be made. Section 46 of the Code deals the manner of arrest particularly in case of forcible resistance. Section 47 of the same Code provides search of place entered by person sought to be arrested. This provision of law maintains that if any person acting under a warrant of arrest or any police officer having authority to arrest has reason to believe that the person to be arrested has entered into any place the incharge of such place shall allow the police officer free ingress for a search therein. Section 48 of the Code provides if ingress to such place under section 47 cannot be obtained without affording the person to be arrested an opportunity of escape, the police officer could lawfully enter the place to break open outer or inner door or window. It further provides that if such place is an apartment in the actual occupancy of a woman, not being the person to be arrested, the police officer shall give notice to such women to withdraw and then break open the apartment. Section 49 of the Code postulates to break open doors, widows for the purpose to a police officer in order to liberate himself who after having lawfully entered for the purpose of making an arrest is detained. Section 50 says that the person arrested has not to be subjected to unnecessary restraint whereas section 51 provides how search of arrested person is to be made. Section 52 strictly provides for search of a woman while section 53 says about seizing of offensive weapon from the person arrested, Section 54 of the Code is provided to arrest any person without an order from Magistrate and without an arrest warrant provided following conditions are satisfied, if a person is concerned in an cognizable offence or against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exists of his having been so concerned. Section 55 provides for arrest of vagabonds, habitual robbers etc. Section 56 of the Code provides when a police officer deputes subordinate to arrest without warrant. Section 57 of the Code maintained about refusal to give name and residence and in presence of a police officer has committed a non-congnizable offence or gives a wrong name, he could be arrested without a warrant. Section 58 authorises a police officer to arrest without warrant in other districts if so authorized while section 59 provides for private persons to make arrests. Section 60 of the Code deals with the production of arrested persons before a Magistrate by the Officer Incharge of Police Station and the period of detention of 24 hours is determined under section 61. The police officer has to report to the District Magistrate or if directed to the Sub-Divisional Magistrate the case of all persons arrested without warrant and their release on bond or on bail bond as provided under section 63 by the order of a Magistrate.
Section 64 provides for arrest by or in presence of Magistrate and if a person in lawful custody escapes, he may be arrested by such person in whose custody he was.
8. After giving a concise survey of the above provisions of law which relate to the arrest, search, and how to enter the dwelling house, room particularly which is occupied by a lady who is not required to be arrested, we would like to deal with the proposition strictly involved in the case. It is firstly to be determined whether a police officer can arrest a person without a warrant or registration of a case and also can enter the house without an order from the Magistrate? We would refer section 54 of the code which lays down asunder:-- "54. When police may arrest without warrant.---(1) Any police officer may, without an order from a Magistrate and without a warrant, arrest--- ' firstly, any person who has been concerned in any cognizable offence against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; ' secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking; ' thirdly, any person who has been proclaimed as an offender either under this Code or by the order of the Provincial Government; ' fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with referenced to such thing; ' fifthly, any person who obstructs a police officer while in the execution of his duty, or Who has escaped, or attempts escape, from lawful custody; ' sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan; ' seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Pakistan, which, if committed in Pakistan, would have been punishable as an offence, and for which he is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan; ' eighthly, any released convict committing a breach of any rule made under section 565, subsection (3); ' ninthly, any person for whose arrest a requisition has been received from another police officer provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the other officer who issued the requisition."
9. A perusal of the aforesaid provisions of law reveals that police officer has been conferred sufficient powers to arrest a person in the investigation of a cognizable offence if he be concerned with commission of such offence but such a power can be exercised only in those cases where a police officer is possessed of some evidence indicating involvement of a person under the four situations mentioned in section 54(1) referred to above. Reliance in this regard may be placed on a case of the Supreme Court of Pakistan reported as Nazir Ahmad alias Jeera Guddi v. The State (1970 PCr.LJ 250) where it was held as under:-- "Under section 54 of the Code of Criminal Procedure a Police Officer may arrest any person without a warrant who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. The scope of sections 54 and 56 is, wholly different. While the authority to arrest under section 54 is limited to the conditions laid down in clauses first to ninthly, the power to arrest under section 56 without warrant is subject to the requirement only of a written order by the senior police officer specifying the offence or other cause for which arrest is to be made. As against these provisions section 54(i), clause first requires that the person to be arrested is concerned in any cognizable offence or information has been received etc. Etc. ' The proposition came under consideration before Karachi jurisdiction in a case titled Muhammad Siddiq v. Province of Sindh and 2 others (PLD 1992 Kar. 358) where the same resolved in the following words:-- "It is true that a Police Officer has been conferred sufficient powers to arrest a person in the investigation of a cognizable offence if he be concerned with commission of such offence. But such a power can be exercised only in those cases where a Police Officer is possessed of some evidence indicating involvement of a person under the four situations mentioned in section 54(1) Criminal Procedure Code."
10. It may also be pointed out that sections 47 and 48 of the Code, referred to above, provide for search of a place entered by a person sought to be arrested by a police officer having authority to arrest and reason to believe that the person to be arrested has entered into or is within any place and section 48 provides procedure if ingress of such place cannot be obtained for a police officer to enter such place and search there in order to effect an entrance without a warrant. For proper perception the relevant sections are hereby reproduced:-- "47. Search of place entered by person sought to be arrested.--- ' If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, the person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto and afford all reasonable facilities for a search therein.
48. Procedure where ingress not obtainable.---If ingress to such place cannot be obtained under section 47 it shall be lawful in any case for a person acting under a- warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtained admittance: Breaking open Zanana.----Provided that, if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it".
11. In view of the aforesaid state of law, we would like to observe that under Chapter V of the Code, particularly under section 54 of the aforesaid Chapter, it is provided that in a cognizable offence a person can be arrested without a warrant or registration of a case provided the necessary conditions provided in the section are satisfied. Similarly, the other provisions under this Chapter provides as to how to enter in a dwelling house-without a warrant and search the house. The observations made by the learned Chief Justice in the Shariat Court particularly in para. 8 shall be deemed to be non-existent to the extent keeping in view the law discussed above. However, para. 9 does not require any comment.
' The revision petition, as indicated above, stands disposed of.