' MUHAMMAD QASIM KHAN, J.---Ghulam Qadir Faraz alias Babar son of Faqir Muhammad (petitioner) through the instant writ petition has sought quashing of F.I.R. No,621 of 2010 dated 21-11- 2010 under sections 371-A and 371-B, P.P.C. Registered at Police Station Saddar Kamoke, Gujranwala, on the complaint of Abid Farooq Sub-Inspector.
2. Briefly the facts as evident from the impugned F.I.R. Are that on 21-11-2010 at 4-15 a.m, the complainant Abid Farooq Sub-Inspector along with Muhammad Shahid 3710/C, Mubarak Ali 4541/C, Suhail Ahmad 3488/C, Muhammad Usman 3541/C and Sajid Ali 2850/C, was on patrol duty for the search of absconders, when information was laid that Irfan and Allah Rakha were indulged in the prostitution through three women, at the dera of Muhammad Awais son of Ghulam Sabir. On said spy information, when raid was conducted, Irfan, Allah Rakha and Muhammad Awais were found involved in taking money from Muhammad Irfan, Abid, Muhammad Shoaib Khan, Babar Hussain, Tariq Mehmood, Khalil, Babar (present petitioner) and Ghulam Abbas accused for committing illicit intercourse with Mst. Aysha, Shuma Bibi and Mst. Sobia. Allah Rakha, Ghulam Abbas and Babar (present petitioner) succeeded to flee, whereas, remaining accused persons were arrested. Irfan was found in possession of Rs,5,000, Muhammad Awais was having Rs, 6,000 and two mobile phones of Nokia made, Rs,12,000 and a Nokia mobile were recovered from Mst.
Aysha, Rs,4,000 from Mst. Sobia and Rs, 3,000 were recovered from Mst. Shamsari. It is further alleged in the F.I.R. That Irfan and Muhammad Awais also admitted to have received the amount from Abid, etc. For prostitution with Mst. Aysha, etc., Mst. Aysha, etc. Also admitted to have received the amount, whereas, accused Abid, etc. Admitted that they had given the amount for that purpose. Furthermore, from the possession of Muhammad Irfan accused a Nokia set, two China mobile sets were in the possession of Babar Hussain, one Nokia set from Tariq Mehmood, one mobile phone was recovered from Khalil Ahmad accused. A total sum of Rs,30,000 and mobile sets were taken into custody.
3. It is argued by learned counsel that F.I.R. Is based on absolutely cock and bull story, no such occurrence ever had taken place. The learned counsel contended with vigor that in fact the women, who have been cited as accused in this F.I.R., run a musical group and on 21-11-2010 they had gone to attend the musical program on the marriage of Ghulam Abbas son of Ghulam Sabir.
On close of the program, when they were returning for Lahore, on Sadhoki road in front of dera of Sardar Afzal, they were stopped by police official namely Muhammad Shahid, Sajid Ali, Muhammad Usman and Riasat, etc., they hurled abuses, forcibly took them to police Chowki and confined them in a room. Abid Farooq (complainant) snatched money as well as mobile sets from them and forced the petitioner and others to dance and also wanted to commit zina with them. It is next argued that police officials forced Mst. Aysha to a naked dance and also misbehaved her, further on, the police officials got lodged the instant F.I.R. Against the petitioner and othds in order to plunder the amount and mobiles sets. It is next argued that regarding all this, a complaint was lodged to the RPO-Gujranwala, an inquiry was conducted and a case F.I.R. No,629 of 2010 under sections 294/354/381/342, P.P.C. Read with section 155-C of the Police Order, 2002 was registered against the police officials at Police Station Saddar, Kamoke. The learned counsel added that no witness from public was associated in the alleged raid proceedings, there is no evidence about alleged sale and purchase of women for the purposes of prostitution and that it is a case of sheer violation of CHADDAR and CHARDEVARI, as protected by the Constitution of Islamic Republic of Pakistan, 1973.
4. The learned AAG has opposed this petition and argued that petitioner has more than one alternate remedies by way of approaching the police hierarchy or moving the learned trial court, hence, the instant writ petition is not maintainable.
4. I have considered the arguments and perused the record.
5. According to the contents of the F.I.R. Itself, on spy information raid was conducted by the police contingent on the dera of Muhammad Idrees son of Ghulam Sabir situated at Mantpura. It has to be seen that the said place of raid was not a public place, rather it was owned and in the possession of a private individual i,e, Muhammad A Idrees. In this case neither search warrants were obtained by the police nor even any effort was- made by the police in this behalf and furthermore, no respectable from the locality was associated in the impugned raid proceeding. In such a situation, the alleged police raid cannot be better terms than an "intrusion", which is an act prohibited by the Constitution, the law and the Holy Quran.
6. On the question of registration of case under the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, on the report of a spy informer, this court in its an elaborate judgment "RIAZ v.
STATION HOUSE, OFFICER, POLICE STATION JHANG CITY and 2 others" (PLD 1998 Lahore 35), after discussing the entire background, held that:-- "Law does not permit the registration of a case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, on the report of a "Mukhbar" because this Ordinance has to be read in conjunction with the Offence of Qazf Enforcement of Hadd) Ordinance, 1979 and "Mukhbar" being entitled to have his name and identity kept secret, this would allow him to even make false imputations of Zina with impunity which would defeat the very spirit and purpose of both Enactments. Such act would not be in conformity with the spirit of Surah Hujrat, Ayat 6 and guidelines provided by the Holy Quran in this behalf. "
The legislators in their wisdom, having regard to the existing norms of B the society, were conscious of the fact that if cases under such offences are permitted to be registered on spy information or on the complaints lodged by anonymous persons, this practice could have encouraged false reports to involve innocent men or women for ill designs. Therefore, section 496-B, Cr.P.C. Was inserted, providing definition of fornication, as:-- "Fornication:
(1) A man and a woman not married to each other are said to commit fornication if they wilfully have sexual intercourse with one another.
(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees."
' Further, a person who is accused of submitting incorrect information or leveling false accusation of fornication is to be dealt with under section 496-C, Cr.P.C., which provides that:- "496C. Punishment for false accusation of fornication.
Whoever brings or levels or gives evidence of false charge of fornication against any person, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees: ' Provided that a Presiding Officer of a Court dismissing a complaint under section 203C of the Code of Criminal Procedure, 1898 and after providing the accused an opportunity to show cause if satisfied that an offence under this section has been committed shall not require any further proof and shall forthwith proceed to pass the sentence."
' Offence of fornication has been defined above and section 203-C, Cr.P.C. Provides that no court shall take cognizance of an offence under section 496-(B), P.P.C. Except on a complaint dodged in a court of competent jurisdiction. By bare reading of F.I.R., it appears that the complainant tried to establish the allegation of fornication and for the same purpose only a private complaint could be lodged under section 496-C, P.P.C. And if the court comes to the conclusion that allegation of fornication levelled against the accused are false, the court can convict the complainant of the case and the witnesses, who appear before the court to give evidence, but in the instant case the complainant and the I.O. In order to avoid the charge of false accusation, did not file the complaint under section 496-B, P.P.C., but on the other hand, the evidence of sale and purchase of the person is also not available on the file.
7. Expounding the scope of fundamental right relatable to inviolability of dignity of man and privacy of the home, it is observed that with incorporation of Article 2-A in the Constitution of Islamic Republic of Pakistan, 1973, a constitutional guarantee has been offered to all the Muslims in Pakistan that they shall be enabled to order their lives both in individual and collective spheres in accordance with the teaching of Islam as set out in the Holy Quran and the Sunnah. Every citizen has been rendered entitled to the basic freedoms and rights enunciated by Islam. Reading of Article 2A together with Article 227 of the Constitution, all State law and acts of State functionaries have to be examined on the touchstone of the provisions of the Holy Quran and Sunnah.
7. Apart from the above, in the instant case there is also sheer noncompliance of safeguards set out in Chapter 25.23 of the Police wherein, Gazetted Police Officer supervising investigations and inspecting officers are under legal obligation to take disciplinary action against for Investigating Officer who carries out searches without sufficient justification. An officer who fails in the discharge of this obligation would himself pass for being inefficient within the framework of Efficiency and Discipline Rules, relatable to his service as well as the Police Order, 2002, exploring him to multiple proceedings.
8. In short, for the purposes of law and implementation of its provisions no room has been made for house search. The Federal Shariat Court has emphatically observed that the charge of Zina should not be casually brought to Court or publicized as it shatters the foundation of the family where female is accused in such a crime. It has been further held that "human weakness should rather be overlooked and ignored, unless committed at public places and becomes a cause of concern from the society's point of view". Reference may be made to the case "GHULAM SAKINA v. STATE" (1991 PCr.LJ 568).
9. It has been observed that the story as narrated in the F.I.R. Seems to be illogical, irrational and implausible, as nobody could possibly run a brothel house in the residential area. The police officials have not obtained the search warrants for raiding the Dera, committed glaring illegality in not following the mandatory provisions of section 103, Cr.P.C. And thus violated Article 14 of the Constitution of Islamic Republic of Pakistan, 1973. Considering the importance of constitutionally guaranteed rights, the language of section 103, Cr.P.C. Attains pivotal significance, providing that before making a search, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated, to attend and witness the search and may issue an order in writing to them or any of them so to do. Then only other provision in the Criminal Procedure Code, which deals with House Search, is section 165 falling in Chapter IV which relate to investigation. Here too, a police officer has to be seized of an investigation in the first place and in aid of same he has to have reasonable grounds for believing that anything necessarily connected therewith is to be found in a place and in his opinion same has to be obtained without undue delay, he may search or cause search to be made for such thing provided he first records in writing the grounds, of his belief and specify in writing, so far as possible the thing for which search is rendered mandatory. But, in this case again, I see flagrant violation of this provision of law. It is nowhere the case of the prosecution that the Investigating Officer even attempted to join any person from public in the impugned raid proceedings, but he/they refused.
In the absence of any such specific excuse or explanation, the police functionaries cannot be permitted to flout the provisions of law, which otherwise, would amount to derailing the entire judicial system.
10. In this case the police has involved the petitioner and others without any iota of evidence, by violating the statutory provisions of law, also encroached the fundamental right of the petitioner and others guaranteed under Article 14 of the Constitution of Islamic Republic of Pakistan, 1973, providing that the dignity of man and subject to law the privacy of home is inviolable. Such fundamental rights are whenever violated and complained of, the court must step into and investigate under constitutional jurisdiction to pass such order as may be found just, legal and equitable. Human dignity, honour and respect is more important than physical comforts and necessities and no attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace another person thereby diminishing, decreasing and degrading the dignity, respect, reputation and value of life and more particularly on the part of the police officials, who are otherwise bound to protect the rights of citizens, should be allowed to go with immunity. The provision providing for the dignity of man as a Fundamental Right is unparalleled in the Constitutions and hardly Constitutions of a few countries provide such rights. It is difficult to countenance the clandestine and spurious manner in which law has been put into motion in this case. Both injunctions of Islam and the law of the land are intended to protect and preserve Fundamental Right of the Dignity of man and Privacy of his Home. Both the concepts have to be read conjunctively. Privacy of home after all, also enshrines dignity of man. It may be noted that the word "inviolable" has been used in the Constitution in respect of this right particularly. Violation of the privacy of one's house through arbitrary intrusion by the police, without authority of law is certainly condemnable being repugnant to the concept of the human rights relatable both the dignity of man and privacy of the home.
11. From perusal of sections 371-A and 371-B, P.P.C., it is very much clear that these provisions only would apply to persons who sell or purchase any person with the intent that such person would be used for the purpose of prostitution or illicit intercourse. In this case no material was available against the accused to substantiate the commission of offence. No eye-witness was available before conducting the raid, no search warrant had been obtained before raiding the Dera and police officials committed violation of section 103, Cr.P.C.
12. Non-observance of all the above legal requirements, not only give a strong impression about the mala fides of the police, but it also is indicative of the fact that this all was done by the concerned police officials in extreme haste, to cover up and shield the wrong, which they had done to the petitioner and other persons, cited as accused in the instant F.I.R.
13. In view of the above, this Court is satisfied that in the instant case the prosecution was launched for ulterior motives and mala fide just to harass the petitioner and others, whereas, there is no evidence available on the file so that accused petitioner could be convicted in the case and even otherwise, the police officials have violated the law and fundamental rights protected by the Constitution of Islamic Republic of Pakistan, 1973. As such, it appears to be high time to take legal steps to keep the government functionaries and agencies within their lawful sphere, and in this case continuation of investigation, prosecution or the trial, would amount to sheer abuse of process of law and it would not be in the ends of justice. When on the face of it F.I.R. Is registered with mala fide are prosecution of a criminal case is patently against the provisions of law, or otherwise no case could possibly be made out, this Court has ample jurisdiction to quash the same, as no useful purpose would be served to keep such matters pending, rather the same would amount to abuse of process of court of law. Mere availability of alternate remedy would not constitute a bar upon the F jurisdiction of this Court to entertain a constitution petition and to exercise its jurisdiction if the circumstances so warrant. When registration of F.I.R. And proceedings thereon, are patently illegal Or illegality is floating the surface, to refuse interference under Article 199 of the Constitution of Islamic Republic of Pakistan, would in fact amount to acting in aid of injustice and plea of alternate remedy loses its legal significance.
14. For what has been discussed, the instant writ petition is allowed, consequently F.I.R. No,621 dated 21-11-2010 registered at Police' Station Saddar Kamoke, District Gujranwala under sections 371-A and 371-B, P.P.C., and all the proceedings thereon, are quashed.