IBAD-UR-REHMAN LODHI, J.---By means of F.I.R.No.606 of 2013 dated 23-6-2013 registered under sections 371-A and 371-B P.P.C. At Police Station Nawab Town, Lahore, the Incharge of Police Post L- Block got registered the instant criminal case to the effect that he was informed about the presence of a proclaimed offender, namely,. Imran Ali, in a guest house. When raided, the said proclaimed offender was not found their but he apprehended some men and women on the allegation that such apprehended persons were found in objectionable position busy in some obscene activities.
2. The petitioner through the present Constitutional Petition seeks quashment of the First Information Report mentioned above.
3. The learned counsel for the petitioner has argued that even if the allegations contained in the F.I.R. Are accepted as correct, the offences under sections 371-A and 371-B P.P.C., at no cost, are constituted.
4. The offence under section 371-A P.P.C. Would constitute if a person 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 which may extend to twenty five years, and shall also be liable to fine. Similarly, section 371-B, P.P.C. Provides a punishment for the purpose of buying a person for the same purpose as were provided in section 371-A, P.P.C. For selling purpose.
5. The learned Assistant Advocate General by intervening in the arguments of the learned counsel for the petitioner has placed information before the Court that the police after preparation of report under section 173, Cr.P.C. Has placed the same before the learned trial court and it would be appropriate for the petitioner, first to approach the learned trial court in view of section 265-K, Cr.P.C. To which the learned counsel for the petitioner with the help of a case decided by the Hon'ble Supreme Court of Pakistan titled 'Miraj Khan v. Gul Ahmed and 3 others' (2000 SCM R 122) has submitted that High.
Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. Without awaiting for Trial Court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. Main consideration to be kept in view would be futile exercise, wastage of time and abuse of process of Court or not.
6. Placing reliance on such authority/judgment of the Hon'ble apex Court, I am inclined to decide this petition on merits without referring the petitioner to the learned trial court, where reportedly challan under section 173, Cr.P.C. Ought to have been filed.
7. This Court in case of 'Muhammad Abbas alias Ajmi v. The State' (2005 YLR 3193) has held that the police on receipt of spy information raided on a rented room of a Hotel and found the accused busy in committing Zina-bil-Raza with a woman and arrested both of them. Such raid which was conducted without obtaining search warrant from the Magistrate within the requirement of section 103, Cr.P.C, was termed as an illegal act. It was further held in the same judgment that protection of dignity of man and the privacy of home had been guaranteed being inviolable by Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973.
8. Keeping in view the peculiar facts of this present case, I am seeking guidance from an elaborated judgment passed by this Court in the case of 'Ghulam Qadir Faraz alias Babar v. Station House Officer, Police Station Saddar Kamoke and 2 others' (2012 PCr.LI 638) and for ready reference, some of the selected portion from the said judgment are re-produced here-in-below:-- "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 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 further more, 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.
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 at 6 and guidelines provided by the Holy Quran in this behalf."
The legislators in their wisdom, having regard to the existing norms of 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. 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).
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 uparalleled 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 this 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. From perusal of sections 371-A and 371-B, C.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.
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. "
9. By applying the above settled principal on the case in hand, it is but clear that in the present case, the prosecution was launched for some ulterior motives just to create harassment for the persons involved B therein and the prosecution is not equipped with any material in order to involve the petitioner or other persons in the offences punishable under sections 371-A and 371-B, P.P.C. When the Court is convinced that from very inceptions, the prosecution was started with a malice, then there will be no justification to await for the trial court to pass any order under section 265-K, Cr.P.C.
In view of what has been discussed above, the instant petition is allowed and consequently F.I.R.
No.606 of 2013, dated 23-6-2013 registered under sections 371-A and 371-B, P.P.C., at Police Station, Nawab Town, Lahore, as well as, the proceedings pending on the basis of such F.I.R before learned trial court are quashed.