The petitioners have sought quashment of FIR Bearing No. 155 dated 5.7.2004, registered under Section 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the 'Ordinance') read with Section 14 of the Foreigners Act, 1946 at Police Station Kohsar, District Islamabad.
2. Facts of the case, in brief, are that on receiving spy information that at premises Bearing No. 52-B Nizamuddin Road, Sector F-7/4, Islamabad one Mst. Cao Limin daughter of Czso is running a prostitution den and she invites hired customers for zina, on account whereof the inhabitants of the locality are highly disturbed and such acts of her have also deteriorating effect on the society and if a raid is conducted the people busy in debauch activities can be apprehended, red handed, a raid, supervised the City Magistrate, was conducted by the police party at the 'said premises and the petitioners, who were allegedly found wearing underwears, at the relevant time and their female companions were in semi-naked condition, were apprehended. As per contents of the FIR, since the petitioners could not produce passports or permits to.enter into Pakistan, at the time of raid, therefore, the FIR under Section 13/14 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 read with Section 14 of the Foreigners Act, was registered.
3. Record reveals that subsequent to their arrest the petitioners alongwith female accused persons namely, Cao Limine and Lime Jun, moved an application for grant of bail in the Court of Additional Sessions Judge, Islamabad who having found that the petitioners were in possession of the valid passports and the allegation against them was only to the extent that they were present in the house in semi-naked condition and they were not allegedly involved in commission of zina and, therefore, it was a case of further enquiry, admitted them to bail vide order dated 13.7.2004.
4. It has been, inter-alia, contended by Malik Rab Nawaz Noon, Advocate; learned counsel for the petitioners that all the petitioners were holding valid passports to enter into Pakistan by the competent authority as is explicit from the order of the learned Additional Sessions Judge dated 13.7.2004 and ingredients of Sections 13 and 14 of the Ordinance" not spelling out from the perusal of the FIR in the absence of evidence that co-accused had sold, let to hire or otherwise disposed of any person with intent that any such person may at any time be employed or used for the purpose of prostitution or illicit inter-course with any person and petitioners' presence in the said bungalow, which was a Chines Restaurant and also a Hair Cutting Ceylon,. could not have culminated in registration of the case in hand particularly when there were no signs or symptoms of their indulgence in sexual liaison with any was the female accused persons. It is further his case that though the raid was allegedly supervised by a Magistrate but, since statutory provision of Section 103 Cr.P.C. regarding association of independent witnesses of the locality, was violated, therefore, no sanctity can be attached, even to the allegation contained in the FIR. Learned counsel for the petitioners has maintained that since no cognizable offence was made out and any proceedings based on the FIR may result in abuse of process of Court, therefore, the FIR may, in order to secure the ends of justice, be quashed.
5. Mr. Shafqat Munir Malik, Assistant Advocate General, appearing for the State, has confirmed that up-till now challan in the case, has not been furnished in Court and that evidence collected by the prosecution would not improve the case of the prosecution as disclosed in the FIR. In response to the query as to whether on the basis of allegation contained in the FIR any offence under Section 13/14 or even under Sections 10(2) of "the Ordinance" was made out, the learned Assistant Advocate General candidly conceded that since allegation against the petitioners and evidence collected by the prosecution also was to the extent only that they were found in underwears and females were also in semi-naked condition, therefore, in his view, no offence, cognizable or otherwise, was made out.
6. I have given my anxious consideration to the respective contentions of the learned counsel for the parties besides perusing the available record, minutely.
It may be mentioned here that though under Section 154 Cr.P.C. an officer incharge of police station on receiving information relating to the commission of an offence is bound to reduce the same into writing, and investigate the matter but prerequisite for registration of FIR. is that the information so received should be with regard to a cognizable offence otherwise it may be simply entered in a book, kept .for the purpose, and informant be referred to Magistrate as provided by Section 155 Cr.P.C.
It would also be not out of place to mention here that ordinarily, criminal proceedings instituted against the accused must be taken to logical conclusion and should not be interfered with at initial or interlocutory stage, unless the allegations contained in the FIR or the complaint, at their face value, do not disclose a cognizable offence or are not capable to constitute the offence alleged, or are so illogical that no sensible person can ever reach to the conclusion that'accused can be proceeded against on the basis thereof or are intended to settle score on account of any personal grudge or the prosecution of the accused is barred by any law, however, in appropriate cases, where it is apparent that police has transgressed its statutory power and the apprehension is that continuation of the proceedings would be an exercise in futility or wastage of time and may result in abuse of process 'of Court then, it may, in order to secure the ends of justice, be interdicted.
In the case of Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122, complainant, in the FIR, which was based on his written application, had admitted that the disputed amount was given to the accused as Qarz-ehasna, It was observed that addition of the word "Amanat" with "Qarz- ehasna" was ridiculous and appeared to have been added so as to justify registration of the criminal case. It was held that no offence even on admitted facts, was made out against the accused as the dispute was entirely of civil nature which, with ulterior motive was converted into criminal proceedings and that proceedings in the trial Court on the basis of impugned FIR would have been sheer wastage of time. Quashment of the FIR by the High Court, therefore, was upheld. In the case of Punhal Shah and others v. The State PLD 1984 SC 22 too, it was held that report to be treated as FIR must disclose reasonable suspicion of cognizable offence. In the case of Syed Murad Ali Shah v. Government of Sindh PLD 2002 Kar. 464, too, it was laid down that when a complaint investigation/report or other step either in lodging. FIR or prosecution of a criminal case was patently against the provision of any law or otherwise no case was possibly made out, the proceedings were liable to be quashed. In the case of Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600, the Station House Officer had refused to lodge FIR. It was held 'that where allegations made, without making elaborate investigation into them, were hard to be believed, provision of Section 154 Cr.P.C. would not be attracted. In the case of Safia Sultana v. The Station House Officer Police Station Nawankot Lahore PLD 1988 Lah. 714 too, the SHO had refused to register FIR, as according to him, no cognizable offence was made out. It was held that significant pre-requisite for registration of First Information Report was that the information received must relate to commission of a cognizable offence or it must disclose that cognizable offence has been committed. In the case of Muhammad, Younas v. The State NLR 1987 (Criminal) 66, the FIR was lodged against the accused for cheating by personation before Presiding Officer. The proceedings were challenged before the High Court by way of petition under Section 561-A Cr.P.C. On inquiry, since the Assistant Advocate General submitted that on the basis of evidence already recorded in Court, as well as on the basis of the statements of the witnesses made under Section 161 Cr.P.C. no offence was made out, therefore, the proceedings were quashed. In the case of Mukhtar Ahmad etc. v. The State NLR 1983 (Criminal) 612, the allegation leveled against the accused persons was that wife of the complainant who was also an accused in the case had allegedly misappropriated gifts given to her, by her husband. It was held that since gifts given to the wife if utilized by her could never give rise to a criminal liability of breach of trust, therefore, the proceedings based on the complaint, could not have been permitted to continue. In the case of Qaiser Saleem vs. Hasham Hussain and another 1986 P.Cr.L.J. 133 too, it was held that proceedings of a criminal case was liable to be quashed if facts allegedly do not make out a case of criminal liability. In the case of Karam Khan v. Khuda Bakhsh 1984 K.L.R. (Cr1. C) 22, the only allegation leveled against the accused was that he being an influential person was patronizing the principle accused. It was held that since allegation could not be have been termed as abetment, continuation of proceedings tantamounted to abuse of the process of Court. The same, was, therefore, quashed.
Reference, in this regard, may also be usefully made to the following reported judgments:--
(i) S.M. Dutta v. State of Gujrat and another AIR 2001 SC 3253;
(ii) T.T. Anthoni etc. v. State of Kerala and others 2001(5) Supreme 131;
(iii) Satish Mehra v. Delhi Administration and another 1996 (5) Supreme 742;
(iv) Muhammad Bilal v. S.P. etc. PLJ 1999 Lah. 744;
(v) V.A. Khanna v. Jambo Electronics 1984 Cr.L.J. 1967; and
(vi) Safia Sultana v. Station House Officer Police Station Nawankot Lahore PLD 1988 Lah. 714.
It would also be pertinent to mention here that though there is no clog of time on exercise of inherent powers by the Courts which can be used at any stage yet, since power of the trial Court under Sections 249-A and 265-K Cr.P.C. is coextensive with similar power of the High Court under Section 561-A Cr.P.C. as was held in the case of Mian Munir Ahmad v. The State 1985 SCMR 257, therefore, in my view, the FIR if required, should be quashed at pre-trial stage only when cognizance is not taken by the Court otherwise, the matter should be left at the discretion of the trial Court.
7. Admittedly, the allegation against the petitioners contained in the FIR is only to the extent that at the time of raid the petitioners were found in the said house in semi-naked condition. There is no allegation that they, at the relevant time, were either committing zina or had any intention to do so.
Even there is no allegation that they were found kissing or embracing or were close to each other. I have specifically enquired from the Assistant Advocate General as to whether any money was recovered from the possession of Cao Limine against whom the allegation is that she used to run the brothel house, and he, after consulting the concerned police officials who are present in Court, has stated that nothing was recovered. He has also confirmed that except the allegation contained in the FIR, neither any witness has seen the petitioners as well as the female accused persons committing zina or even an attempt to do so. He has also confirmed that at the time of raid no witness of the locality was associated.
In the case of Mst. Sukhan vs. The State - 1985 P.Cr.L.J. 110, the case of the prosecution was that Mst.
Sukhan was abducted. The learned Additional Sessions Judge tried the case and charged all the six accused persons including Mst. Sukhan under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Mst. Sukhan. Despite the fact that none of the PWs had stated that they had seen Mst. Sukhan committing zina with any of the accused persons, the trial Court found her guilty and convicted her under Section 10(2) of the Ordinance primarily for the reason that the Chemical Examiner's report qua her vaginal swabs was found positive. Appeal was filed in the Federal Shariat Court. While discussing the proposition as to whether in the absence of proof of penetration which was essential ingredient under Section 4 of the Ordinance conviction for the charge of zina can sustain, it was observed that penetration was necessary in order to constitute the offence of zina and love making activities even howsoever, objectionable morally and socially might be of such male and female, like kissing, embracing or lying on same cot or even lying on each other would not bring the case within the mischief of zina unless they indulge in actual penetration. In the case of Muhammad Saleem and another - 1988 P.Cr.L.J. 2321, allegation against the accused persons was that at the time of raiding the house of appellant Abida she and Muhammad Saleem appellant were found in compromising position. On record only evidence against them was of P.W.2 Niazul Hassan who had deposed that when he raided the house he had found both the appellants kissing and embracing each other. The charge against the appellants was of attempt to commit zina. It was held, by a Full Bench of this Court, 'that on the allegation proved, by no stretch of imagination, it could have been stated that appellants by kissing and embracing each other had attempted to commit zina with each other. If the allegation was true, even then it can only be said that at the most they had intention to commit zina but no one can be punished for mere intention to a commit a crime. Further, the alleged act of the two appellants in kissing and embracing inside a house is not covered by any of the law relating to Hudood and even not punishable under any of the sections of Penal Code or any other penal law and a similar view was also taken by a Single Bench of the High Court of Peshawar in the case of Mst. Shakeela vs. The State reported as 2001 P.Cr.L.J. 43.
9. The upshot of the above discussion is that since, in the instant case, neither any witness from the public has been associated by the prosecution to testify that the house in question was being used as a prostitution den nor any money from the possession of any of the accused persons has been recovered to believe that the allegation contained in the FIR was true and the material collected by the prosecution including the statements of the PWs, recorded under Section 161 Cr.P.C. is not likely to improve the case as disclosed in the FIR nor on the basis of allegation contained in the FIR, as well as material collected by the prosecution any cognizable offence is made out and Malian in the case has not, so far, been submitted despite the fact that the FIR, in the case, was registered way back in July, 2004, therefore, I am of the view that continuation of proceedings in the case would be mere an exercised in futility. Resultantly, the FIR Bearing No. 155 DATED 5.7.2004 registered at Police Station Kohsar is hereby quashed.