' MUHAMMAD MOOSA K. LEGHIARI, J.---The applicants/ accused have been entangled by Shahrah- e-Faisal Police in Crime No,163 of 2006 registered on 28-3-2006 at the aforementioned Police Station on the complaint of S.I.P. Mumtaz Abro, for the offences punishable under sections 13/14/18 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. Brief facts of the case as narrated in the above cited F.I.R. Are that on 28-3-2006, while the complainant was patrolling in the area in a private vehicle, along with police party he received a spy information that some male and female persons were indulging in prostitution in Flat No,A- 11/28 Jauhar Square Gulistan-e-Jauhar Karachi. On reaching at the pointed flat at 1740 hours he knocked the door of the flat which was opened. The complainant entered the premises and found the inmate male and female persons in objectionable position. They were made to put on their clothes. Since the accused named in the F.I.R. Were found to have committed the offences punishable under sections 13/14 and 18 of Offence of Zina (Enforcement of Hudood) Ordinance, they were arrested, and the F.I.R. Was registered against them.
3. It appears that after completing the investigation which was conducted by one A.S.I. Muhammad Akram charge sheet was submitted, which was accepted by the Magistrate concerned and R & Ps.
Were ordered to be transmitted to the Sessions Court.
4. Having failed to get bail from the trial Court, the applicants approached this Court. Arguments were heard and with the assistance of learned counsel material available on record was examined in context of the provisions of relevant law. Learned counsel for State however, opposed the grant of bail, in a routine manner, but was utterly unable to advance any rational and/or plausible arguments to support the case of the prosecution.
5. The applicants have been booked for offences under sections 13, 14 & 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 it will be appropriate to reproduce hereunder, the relevant sections:-- "13. Selling person for purposes of prostitution, etc.--Whoever sells lets to hire, or otherwise disposes of.Any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.
14. Buying person for purposes of prostitution, etc.--Whoever buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.
18. --Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one half or the longest term provided for that offence, or with whipping not exceeding thirty stripes or with such fine as is provided for the offence, or with any, two of or all, the punishments."
6. The bare perusal of the above provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 would demonstrate that section 13 provides for punishment to be inflicted on person(s), who sell(s), let(s) to hire, or otherwise dispose(s) of any person with intent that such person shall at any time be employed or used for the purpose of prostitution, or illicit intercourse or for any unlawful and immoral purpose. Whereas section 14 ibid provides for the similar punishment against person(s) who buy(s) hire(s) or otherwise obtain(s) possession of any person, with the same intention, while section 18 provides for the punishment for making attempt to commit such offence.
Thus it would be obviously clear that the above sections provide for the punishment against the person or persons who indulge themselves in the business of selling and or purchasing, letting hire and/or hiring, or disposing of/taking possession of other person(s) with the intent that such person(s) shall be used for the purpose of prostitution, illicit intercourse or for any unlawful and immoral purpose.
7. It will be seen that on the basis of the allegations in the F.I.R. Registered against the accused persons and the evidence so collected, the prosecution has attempted in vain to establish that the accused persons, being male and female were found indulging in immoral acts, the acts constituting sexual intercourse to be precise. Neither there is any allegation in the F.I.R. Nor any evidence has been collected by the B investigating agency to allege that any of the accused persons has sold, purchased, hired, disposed of or taken possession of any such person for prostitution. The basic element, which may attract the punishment against any of the accused persons, as stipulated under the aforementioned sections of the Ordinance is thus conspicuously missing in the whole story.
8. As observed above, there is absolutely no evidence to show that there was some person who was selling any person, or for that matter buying any person with the intent of using such person for the purpose of prostitution. The prosecution story is absolutely improbable and utterly unbelievable. It militates against the common sense . To say and believe that even after the inmates opened the door on the knock, of the police party still they could be without their clothings and that too in an objectionable position. Though it is hard to comprehend, yet even if it is believed that the accused were in objectionable position as alleged, it would not mean that they were involved in the act of commission of Zina. Needless to say that the proof of Zina requires hard and solid evidence and not the imagination of a petty police official.
9. It may not be out of place to state here that in order to protect innocent citizens from the miseries of petty police officials, and to avert false, malicious and dishonest investigation, the legislature in its own wisdom has suitably amended the Code of Criminal Procedure. Sections 156- A and 156-B have been inserted in the Code by promulgating Act No,I/2005 on 10-1-2005. The newly inserted amendment reads as under:-- "S. 156-A. Investigation of offence under section 295C, Pakistan Penal Code.---Notwithstanding anything contained in this Code, no police officer below the rank of a Superintendent of Police shall investigate the offence against any person alleged to have been committed by him under section 295-C of the Pakistan Penal Code, 1860 (Act XLV of 1860)
S.156-B. Investigation against a woman accused of the offence of Zina.--Notwithstanding anything contained in this Code, where a person is accused of offence of Zina under the Offence of Zina (Enforcement of Huddood) Ordinance, 1979 (VII of 1979), no police officer below the rank of a Superintendent of Police shall investigate such offence nor shall such accused be arrested without permission of the Court".
10.. It will be seen that according to provision contained in section 156-B where a person is accused of Offence of Zina under the Offence of Zina (Enforcement of Huddood), Ordinance 1979, no police officer below the rank of a Superintendent of Police shall investigate such offence nor shall such accused be arrested without permission of the Court.
' Purpose of this amendment understandably seems to prevent unwarranted accusation and mala fide arrests on the charge of Zina.
11. It is sufficiently evident from the record that the investigation of the case was conducted by an ASI and the women accused were arrested without permission of the Court. Thus the provisions of section 156-B, Cr.P.C. Were flagrantly violated by the police and stipulation and command of law was practically rendered null and void.
12. It is manifestly clear from the contents of the F.I.R. Itself that complainant police officer along with police party entered the premises without any search warrants. Though he received spy information yet he did not take any step to co-opt any private person of the locality to watch the proceedings as he did not deem it necessary. Needless to point out that for entering any place to be searched a police officer is required to call upon two or more respectable inhabitants of the locality to act as witness as stipulated under section 103, Cr.P.C. Violation of the above provision of law is not condonable.
13. The Holy Quran has prohibited the act of intrusion into any ones house to only find out commission of offence of Zina. Unlike some other special laws, there is no provision in the Offence of Zina (Enforcement of Hudood) Ordinance (VII) of 1979 to permit the conduct of raid in a house for the purpose of discovery and unearthing the commission of Zina therein. As per true interpretation of Sura An-Nur Verses 27 and 28 of the Holy Qur'an right of privacy of home is inviolable and absolute.
' The translation of the abovenoted Verses by Abdullah Yousif Ali reads as under:-- "27. Ye who believe: Enter not houses other than your own, until ye have asked permission and saluted those in them: that is best for you, in order that ye may heed (what is seemly).
28. If ye find none in the house, enter not until permission is given to you; if ye are asked to go back, go back: That makes for greater purity".
14. Article 14 of the Constitution of Islamic Republic of Pakistan provides inviolable right to dignity of the man. Indeed injunctions of Islam and law of the land, are intended to protect and preserve fundamental right of dignity of man and privacy of home. Violation of privacy of home through arbitrary intrusion by the police, without authority of law is absolutely unwarranted being repugnant to the concept of human rights relatable to the dignity of man and privacy of home.
15. But clandestine and spurious manner in which the complainant police officer and the members of his party behaved and acted, adequately reveals that they egregiously encroached upon and invaded the privacy of home as ordained by Holy Qur'an and grossly infringed the dignity of man as enshrined in the Constitution of Islamic Republic of Pakistan by ruthlessly abusing their authority.
In the case in hand, the police officer conducted search, in flagrant violation of the provisions of law, and undoubtedly acted in highly subversive, extremely arrogant and conspicuously callous and reprehensible and unlawful manner, inasmuch as, he breached the injunction of Islam, flagrantly violated the provision of Constitution, flouted the law and acted in contravention of police rules/order.
16. It was dismaying to note that the Magistrate concerned accepted the challan and took cognizance of the offence in a mechanical manner, in disregard of the provisions of law, without examining the material produced by the prosecution and without proper application of mind.
17. Section 190, Cr.P.C. Provides for cognizance of offences by a Magistrate which he can take (a) upon receiving the complaint of facts which constitute the offence, (b) upon the report in writing of such facts made by any Police Officer and (c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed. It is only after taking cognizance of a case that the Magistrate has to determine whether the matter before him is exclusively triable by a Court of Session. Once he arrives at the conclusion that it is so triable, his own jurisdiction to try it ceases, and he must send the case to the Couft of Session for trial.
18. The word 'cognizance' does not mean merely preparation to deal with the matter without application of one's mind. The language of subsection (2) leaves no doubt that it is the duty of the Magistrate to apply his mind to the facts of the case in order to determine whether it is exclusively triable by a Sessions Court or it can be tried by another Court also.
19. In the case of Raja Khushbakhtur Rehman and another vs. The State in 1985 SCM R 1314 it was held that; "the word "cognizance" is a term of art implying application of mind to the facts of a case in order to determine whether the facts disclosed constituted an offence triable"
20. In the case of Mehar Khan vs. Yaqub Khan and another reported as 1981 SCM R 267, it was as under:-- "A reading of subsection (3) of section 190, Cr.P.C., in the light of above-noted facts would, however, show that
(i) before he can 'send' a case for trial to the Court of Session, a Magistrate must, first, have taken cognizance of a case, under any one of the three clauses to subsection (1) of the section 190, Cr.P.C.
In other words, he must either have received a private complaint under clause (a), or a Police report under section 173, Cr.P.C., as envisaged in clause (b), or he should be acting on any information received by him, as mentioned in clause (c). It is, therefore, evident that he cannot act under subsection (3) without having received a private complaint or a Police report (i,e, a challan either complete or incomplete) or some information from any other source.
(ii) That although now a Magistrate is not required to hold an `inquiry' under Chapter XVIII, but that does not mean that he is to act merely as a post office and automatically 'send' the case for trial to a Court of Session simply because a section relating to an offence exclusively triable by a Court of Session has been mentioned by the Police or the complainant (as the case may be) in the challan or the private complaint. He is, in fact, required on having taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him, by the Police or the complainant, if in order to determine whether the allegations made in the Police report, private complaint or information received by him, make out a prima facie case triable exclusively by a Court of Session. (Emphasis supplied)
21. It will be pertinent to point out that consequent upon promulgation of Ordinance XXXVII of 2001 subsection (2) was deleted, and subsection (3) was re-numbered as subsection (2) of section 190, Cr.P.C.
22. It was yet another agonizing fact that Mrs. Akhtar A. Chaudhry Vth Additional Sessions Judge Karachi East even declined bail to women accused in a cursory manner on flimsy and imaginary grounds, in spite of the fact that inherent infirmities in the case of the prosecution were highlighted in the arguments advanced before her. The order of refusal of bail, in the circumstances, thus was tantamount to curtailing the liberty of the citizens without due process of law. To say the least this situation is painfully disgusting and needs to be quickly identified, arrested and rectified.
23. It may not be out of place to mention that the Judicial Officers are not only expected and supposed to know the law, but are required to continue updating their knowledge of law. The District & Sessions Judges being the Head of District/Sessions Division in their position as Team Leader are further expected to act as Role Model and must impart legal knowledge to the Judicial Officers subordinate to them. It goes without saying that an ignorant Judicial Officer could never, ever be able to deliver and dispense with even-handed justice, more particularly to the downtrodden and least privileged classes of the society.
24. Be that as it may, the wrong caused by the police needs to be remedied at the earliest occasion. Undisputably, this Court has been bestowed with very wide, unbridled and indefinite inherent powers under IJ section 561-A, Cr.P.C. To prevent the abuse of process of Court or otherwise to secure the ends of justice.
' Indeed in order to accomplish the object of doing real and substantial justice, the case in hand appears to be a fit case warranting the invocation of inherent jurisdiction of this Court to prevent the abuse of the process of court and to secure the ends of justice. As obviously apparent from the above discussion, the F.I.R. And consequent challan/charge sheet which is subject matter of present bail applications having been registered and investigated in flagrant disregard of law against fundamental rights as enshrined in Constitution and in violation of Ordinance 1979, and the subsequent proceedings emanating therefrom are sheer abuse of the process of Court, thus could not be allowed to continue. Consequently the proceedings arising out of F.I.R. Registered vide crime No,163/2006 under sections 13/14/18 of Offence of Zina (Enforcement of Hudood) Ordinance 1979 at Police Station Shahrah-eFaisal are hereby quashed.
25. Resultantly, the applicants, as well as any other person in custody in consequence of registration of the said F.I.R. Shall be released forthwith.
26. These are detailed reasons for the short order passed on 1-6-2006.
27. In the light of above discussion, it is evidently clear that police party headed by complainant Sub-Inspector Mumtaz Ali Abro of Police Station Shahrah-e-Faisal abused their authority thus they rendered themselves liable to penal as well as disciplinary action. All concerned police personnel, therefore shall be proceeded against under the provision of Pakistan Penal Code, Police Order, and service laws, which have been flouted.
' Let a copy of this order be sent to Home Secretary Sindh and Provincial Police Officer Sindh for initiating appropriate action against the delinquent officials, with a further direction that all necessary steps be taken to prevent such flagrant abuse of authority by police officials in future.
' Let copy of the order be for warded to learned Member Inspection Team also for necessary action.