' IJAZ AHMAD CHAUDHRY, J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No,279, dated 2-8-2000, registered under sections 13/14/10, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 18 of Motion Pictures Ordinance and section 292, P.P.C. At Police Station Makhdoom Rasheed.
2. The prosecution story narrated in the F.I.R. Is that on 2-8-2000 at, about 3-00 p.m. (noon), Ghulam Mustafa, A.S.-I. (complainant) along with other police officials was on patrolling duty Canal Chowk, Chak No,2/MR, when he received secret information that nude film was being played on V.C.R. In the Baithak of Khushi Muhammad petitioner, who along with one Abdur Razzaq was also committing Zina with a young girl. Thereupon the complainant along with other police officials on the pointation of the informer went to the Baithak of Khushi Muhammad petitioner and while peeping through the door saw in the light of the electricity that nude film was playing there while Khushi Muhammad petitioner was committing Zina with girl whose name was later on known as Mst. Pomi and Abdur Razzaq co-accused was standing there in naked condition. According to the complainant they got opened the door and Mst. Pomi had told in the presence of the P.Ws. That Khushi Muhammad and Abdur Razzaq had hired her from Mst. Zahooran of Budhla Sant for a sum of Rs,200. She also stated that both the male accused had committed Zina with her turn by turn.
Television, V.C.P. And two Video cassettes were also taken into possession from the spot. Hence the present case.
3. Learned counsel for the petitioner contends that the case was registered falsely as the petitioner had the enmity with one Sabir Ali, who is a police tout and the petitioner had moved an application against him on 22-7-1998; that the very act of the police officials of peeping into doors of the Baithak was against the teachings of Islam, which protects the privacy of home. The learned counsel has referred to Verses 27 and 28 of Surah An-Noor and also sayings of Holy Prophet (p.b.u.h.) to the effect that Muslims have been prohibited from investigating the hidden matters of others and even if those came to their knowledge, it is better for them to conceal the same from others, The learned counsel has also quoted the famous incident of Hazrat Umar that he entered the house of some one on hearing the song while climbing over the wall where he found the person present with a woman and alcohol, but did not take any action against them due to the teachings of Islam that (i) one should enter the house from the door, (ii) entrance in others house without permission is prohibited and (iii) investigation in the matters of others is not allowed. It is also contended that even Article 14 of Constitution of Islamic Republic of Pakistan protects the dignity of man and privacy of home. Also contends that the complainant himself could not be the Investigating Officer and all the proceedings are illegal. He has referred to the following case-law:- -
(i) 1968 PCr.LJ 1997; (ii) 1991 PCr.LJ 568; (iii) 1988 PCr.LJ 2321; (iv) 1999 M LD 1618; (v) NLR 1994 Cr.LJ 503;
(vi) PLD 1998 Lah.
35.
' To contend that the F.I.R. Is liable to be quashed.
4. I have heard the learned counsel for the petitioner and perused the contents of the writ petition as well as case-law cited by him. The serious allegation of commission of Zina has been levelled against the petitioner and other co-accused. Either in the contents of the writ petition or during the course of the arguments addressed by the learned counsel for the petitioner it has not been denied that the petitioner was not caught red-handed while indulged in the commission of Zina along with the co-accused, which is a cognizable offence, but only the advantage of the Islamic teachings referred to above is being taken to avoid the punishment. Ibn Abbaas (RAA) said: There is no major sin if one asks for forgiveness, and there is no minor sin if one persists in repeating it.
The petitioner wants to take advantages of Verses 27 and 28 of Sura AnNur, but himself has failed to obey the Injunction of Allah contained in the very next Verses Nos.29 and 30 quoted hereinbelow.
Stories and history in the Qur'an are meant to teach us today, for our everyday life and was never meant only for the previous generations. Our generation, at this time of our life, needs this guidance and this kind of justice now as much as the previous generations needed them and even more. Only the true believers will hear and obey, while the hypocrites and disbelievers will try to find excuses not to follow the rules and commandments of God. The Qur'anic justice is not good enough for them, or in other words, for them, God is not enough nor His Book, the Qur'an. Even for those who might have missed 24:17, God gave us another great lesson in 49:6:-- "O You who believe, if a wicked person brings news to you, you shall first investigate, lest you commit injustice towards some people out of ignorance, then become sorry for what you have done." ' which ordains that it is necessary for the Government functionary to scrutinize the matter reported by the bad character people before proceeding against the accused, but does not prohibit action into true allegation. In the present case the petitioner has failed to show that the accusation levelled against him was altogether false and it was meant only to humiliate him. He was caught red-handed at the spot along with the girl and the co-accused. The petitioner has not given any explanation that how the girl who was not related to him in any manner was present in his house.
Even otherwise the matter requires recording of evidence and the petitioner can prove his innocence at the trial when he will be afforded opportunity to cross-examine the P.Ws.
5. It cannot be ignored that there is no greater sin before Allah (s.w.t.) after "Shirk" (polytheism) than unlawful seed put into a womb of a woman by way of fornication or adultery. Allah (SWT)'s order in the Qur'an to stay away from Zina.
"And those who invoke not any other god along with Allah, nor kill such life as Allah has forbidden, except for just cause, nor commit illegal sexual intercourse (Zina) and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; except those who repent and believe and do righteous deeds, for those Allah will change their sins into good deeds, and Allah is Oft Forgiving, Most Merciful." (Al-Furqaan No,25, Ayat No,68-70).
"And come not near to unlawful sexual intercourse. Verily, it is a Faahishah (a great sin) and an evil way." (Sura Al-Israa No,17 Ayah No,32)
6. Imaam al-Qurtubi (may Allah have mercy on him) said: The Ulama said that the phrase And come not near to unlawful sexual intercourse is more eloquent than merely saying Do not commit Zinaa, because the meaning is, Do not even come close to Zinaa. This means not doing any deed that may get close to Zinaa or lead to it, such as being alone with a member of the opposite sex, touching, looking, going to evil places, speaking in a Haraam manner to a woman to whom one is not related, thinking about and planning immoral acts, and so on. Even Almighty Allah has ordained that:-- "Tell the believing men to lower their gaze (from looking at forbidden things), and protect their private parts (from Zina illegal sexual acts, etc.)- that is purer for them. Verily, Allah is Al-Aware of what they do."
"And tell the believing women to lower their gaze (from looking at forbidden things), and protect their private parts (From Zina illegal sexual acts etc.) and not to show off their adornment except only that which is apparent (like palms of hands or one eye or both eyes for necessity to see the way, or outer dress like veil, gloves, head-cover, apron etc.) and to draw their veils all over Juyubihinna (i,e, their bodies, faces, necks and bosoms, etc.) and not to reveal their adornment except to their husbands, their fathers, their husband's fathers, their sons, their husbands' sons, their brothers or their brother's sons, or their sister's sons, or their (Muslim) women (i,e, their sisters in Islam), or the (female) slaves whom their right hands possess, or old male servants who lack vigour, or small children who have no sense of the shame of sex. And let them not stamp their feet so as to reveal what they hide of their adornment. And all of you beg Allah to forgive you all, 0 Believers, that you may be successful". (Sura No,24, Ayat No,30 and 31).
' Abd-Allaah Ibn Masood (RAA) said:-- "I asked the Messenger of Allah (SAW), Which sin is worst in the sight of Allah? He said, To make any rival to Allah, when He has created you. I asked, Then what? He said, To kill your child for fear that he will eat with you. I asked, Then what? He said, To commit Zinaa with the wife of your neighbour".
(reported in Sahih Al-Bukhaari Hadith No,492 and Sahih Muslim Hadith No,90).
' Rasulullah (SAW) explained: "If one of you were to be stabbed in the head with a piece of iron it would be better for him than if he were to touch a woman whom it is not permissible for him to touch." (Reported by AlTabaraani; see also Saheeh Al-Jaami 5045).
' This refers to the punishment for touching, so how about worse deeds, such as embracing and kissing, and even worse kinds of illicit activity? Rasulullah (SAW) also said--- "Whenever a man is alone with a woman the Devil makes a third" (Al-Tirmaidhi 3118, Narrated Umar Ibn Al-Khattab, Tirmidhi transmitted it as authentic).
' In the Holy Qur'an Allah (s.w.t.) says:- "But there came after them an evil generation, who neglected prayers and followed the sensual desires, so they will meet perdition. (Maryam, 59).
The Holy Prophet (s.a.w.) says:-- "After me when fornication will increase, sudden deaths will also increase". (Wasaelush Shia).
' Imam Muhammad Al-Baqir (a.s.) says: "Fornication has six types of effects. Three are for this world and three for the Hereafter. The three evils, which become evident in this world, are:--
(1) The face of the adulterer loses countenance.
(2) He falls into depravity and destitution.
(3) His death draws near. And the three punishments for hereafter are:
(1) He is liable for divine anger.
(2) His reckoning is severe.
(3) He abides forever in Hell fire." (Khesaal by Shaikh Saduq).
7. The fifth Imam (a.s.) has also said: "Whoever commits fornication with a Muslim, Jew, Christian or Magian woman, whether she is a slave or a free woman, and dies without repenting of his sin, then the Almighty Allah opens three hundred doors of punishment in his grave. From each door many snakes, scorpions and pythons emerge from the fire and burn and torment him till the Day of Judgment." (ibid).
8. The same Imam (a.s.) describes the fornicator in detail and says that when he would be raised from his grave, on the Day of Judgment, he shall be in a horrible state. The Imam (a.s.) says, "When a fornicator will rise from his grave the stench of his body will be nuisance for the people.
The people will know what deeds he had committed in the world, till the Almighty Allah would order him to be thrown into the Fire." (Wasaelush Shia).
' The Holy Prophet (s.a.w.) said: "Fornication causes depravity and destitution and because of it, populated places become deserted." (Wasael). When Imam Sadiq (a.s.) was asked why adultery is forbidden in Islam? In reply the Imam (a.s.) said:- "Allah (s.w.t.) has made adultery Haraam because it causes many evil things. Murder of innocent, lack of lineage and paternity, lack of training of children and lack of proof of inheritance ." (ibid).
9. The Almighty Allah has created sexual urge for the continuation of the human race. He has also created a feeling of love and physical attraction between man and woman. If this sexual urge is satisfied in a disciplined manner, the human race is assured of peace and prosperity. The germs of disease like AIDS, syphilis, etc. Are not confined only to those who commit fornication. The wife or husband of the fornicator also contacts these diseases and their misdeeds will definitely affect their progeny. It is for this reason marriage with an adulterer is detestable and discouraged by Islam. The Holy Qur'an says:-- "The fornicator shall not marry any but a fornicatress or idolatress, and (as for) the fornicatress, none shall marry her but a fornicator or an idolater; and it is forbidden to the believers," (Nur, 3).
' It leads to destruction and despair. When this evil becomes prevalent in a society, just to satisfy the basic instincts, countless people and their children suffers from debilitating, deforming and incurable diseases. Innumerable illegitimate children are born ill and undernourished, destitute without a home and with no one to have any care for them.
10. In view of above discussion, I am not inclined to interfere in the matter merely on the assertions of the learned counsel for the petitioner or the case-law cited by him that while reporting the present occurrence the various Injunctions of Islam regarding peeping or entering into others houses were not complied with by the complainant and other witnesses as he himself was also bound to obey the ordains of Islam prohibiting to commit Zina, which is not only a sin to be punished by the Almighty Allah on the Day of Judgment, but it has also been declared an offence penalized in this world. Moreover, in the cited judgments it has not been discussed that in the state of burning of the house, its dismantling or if some offence is being committed, one can enter the house without permission, (Ref: Tafseer Mazhari Urdu Vol. VI p.320). Even otherwise Almighty Allah says-- "The prohibited month For the prohibited month, And so far all things prohibited, 'There is the law of equality.
' If then any one transgresses, ' The prohibition against you, ' Transgress yet likewise ' Against him.
' But fear God, and know ' That God is with those ' Who restrain themselves." (Sura 2 Verse 194)
11. In the present case from the perusal of the contents of the F.I.R. Prima facie cognizable offence is made out against the petitioner and other co-accused. If the police officials had received any information that some cognizable offence was being committed, it could enter into the premises without obtaining any permission from the Magistrate as if they wasted time in obtaining permission then an important piece of evidence was likely to be spoiled. Moreover, the witnesses will explain that under which circumstances they entered into the house and they had seen the occurrence when they will appear before the Court for recording of their evidence after submission of report under section 173, Cr.P.C. And the petitioner can cross-examine them, but at this premature stage it cannot be said that the police officials had transgressed their powers while registering the case.
12. As far as the contention of the learned counsel for the petitioner that the complainant cannot be the Investigating Officer is concerned, this argument is repelled as the Honourable Supreme Court of Pakistan in PLD 1997 SC 408 has settled that the F.I.R. Cannot be quashed merely on the ground that the complainant was also the Investigating Officer. Moreover, under section 4 of the Cr.P.C. The purpose of the investigation is to collect evidence only and the petitioner has also failed to show that what prejudice has been caused to him in his defence. The Courts cannot allow the continuation of the crimes under the garb of technicalities and cannot exercise extraordinary relief in favor of such criminals, who fail to satisfy the Court about their innocence. Moreover, no specific mala fide or on the part of the complainant or the other police officials has been alleged except that the F.I.R. Was outcome of dispute between the petitioner and Sabir Ali, alleged police tout, against whom he had moved an application on 22-7-1998, which is not sufficient to declare that the prosecution story is false. He has failed to prove on record any intimacy between the police officials and said Sabir Hussain for falsely implication in the present case. The august Supreme Court of Pakistan in The Federation of Pakistn through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151, has held as under:--
13. "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
14 . For the foregoing reasons, I do not find any merit in this writ petition as the petitioner has failed to show that prima facie no case is made out against him and he was implicated in the present case due to some malice. Hence this petition is dismissed.