' MALIK HAQ NAWAZ, J.---The instant criminal appeal has been filed by the appellant/petitioner against the order/judgment passed by the vacation Sessions Judge on 29.01.2016 and maintained by the Session Judge Gilgit vide Judgment/order dated 27.2.2016.
2. The brief facts of the instant criminal appeal filed by DFO are that on 27.01.2016 the house of appellant was raided by wildlife personnel in the supervision of a Magistrate and some hunted beef of "Markhor" was recovered. A licensed weapon of respondent was taken into possession by the raiding party in absence of the appellant. The appellant/petitioner was arrested on the same day and after summary proceedings he was convicted and awarded 6 months' R.I. And a fine of Rs, 100,000/,
3. The respondent being aggrieved of the said conviction filed a petition under section 491, Cr.P.C., before the vacation Sessions Judge on 27.01.2016, which was disposed of on 29.01.2016. The respondent was allowed bail in the sum of Rs, 200,000/- (Rupees two lac only) with two sureties in the like amount. The respondents 1 to 5 were summoned for 02.02.2016. The attendance of respondents was procured and after hearing the parties, the learned Sessions Judge maintained the order of learned vacation Judge and directed the petitioner/accused to avail the remedy available under law from the competent forum.
4. The present petitioner/appellant filed criminal appeal No,11/2016 against the orders of vacation Sessions Judge/Sessions Judge referred above.
5. The learned counsel for the petitioner/appellant submitted that the orders of both the learned 'Judges are not sustainable in the eyes of law as these orders have been passed in excess of jurisdiction. The learned counsel vehemently contended that a proper forum is provided in Wildlife Act, 1975 and without availing the remedy before the appropriate appellate forum the respondent has approached the Court of Session and both the learned Judges, without following the law, allowed interim relief under section 491, Cr.P.C., which approach is not accordance with law and whole the mechanism provided under Wildlife Act has been made redundant. The learned counsel prays that the orders of both the learned Sessions Judges passed in utter violation of law be set aside and the respondent be committed to judicial 'custody to serve out the remaining sentence of imprisonment. The learned counsel for the appellant relied on judgment reported in PLD 1999 Peshawar 16 (Sharif Khan v. I.G. Prison), in support of his contention.
6. On the other hand the learned counsel for respondent while rebutting the arguments of learned counsel for the appellant/petitioner submitted that the staff of Wildlife in the company of a Magistrate entered into the dwelling house of the respondent in his absence and took into possession the alleged hunted meat and a licensed rifle of the respondent. The learned counsel for respondent further contended that the sanctity of "chadar and chardiwari" has been violated and the very entry in the house without any search warrant is illegal and amounts to house trespass, which is a penal offence under law. Per learned counsel the proceeding taken by the learned Magistrate were in utter violation of law and liable to be set aside and prays that the orders of both the learned Sessions Judges do not warrant any interference by the Court and be maintained. The learned counsel relied on 1999 M LD 778 (Basma Tabassum v. Deputy Commissioner Sheikhupura etc.), 1995 PCr.LJ 345 (Ch. Pervaiz Ellahi v. SHO Police Station Qua Gujar Singh), PLD 2008 SC 376 (Arshad Mehmood v. The State).
7. Having heard both the parties and after perusal of record with their assistance, it would be advantageous to re-produce section 491, Cr.P.C.
491. Power to issue directions of the nature of a Habeas Corpus. Any High Court may, whenever it thinks fit, direct:
(a) That a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) That a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) That a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) That a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court- martial or Commissioners respectively;
(e) That a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) That the body of defendant within such limits be brought in on the Sheriffs return of cepi corpus to a writ of attachment."
8. Since a case was registered against respondent and he was convicted by a Magistrate exercising powers under Wildlife Act, 1975, the custody/detention of respondent cannot and was not permissible to be challenged under section 491, Cr.P.C. The powers under section 491-A, Cr.P.C., are available to Sessions Judge/Addl. Sessions Judge but they were not justified to convert the proceeding of section 491, Cr.P.C. Into the proceeding under section 497, Cr.P.C. As no inherent powers are available to the subordinate Judiciary under Criminal Procedure Code to convert one type of proceeding into another type of proceedings and the inherent powers under section 561-A, Cr.P.C. Are only available to a High Court.
9. A proper forum is provided to the accused booked under Wildlife Act, 1975 and the Courts should be slow to interfere and poke their nose in the jurisdiction of a forum, especially provided as there are water tight arrangements for exercise of jurisdiction. However, where no forum is provided and a person/accused is convicted he can resort to Chief Court for relief by invoking the provisions of section 561-A, Cr.P.C., as a citizen cannot be allowed to rot in jail if no forum of appeal is existing/provided.
10. Reverting to the facts of this case the only provision in the Criminal Procedure Code which deals with the house search is section 165, Cr.P.C., falling in Chapter IV which relates to investigation.
Before obtaining warrant for search of a house under sections 96, 98 and 165, Cr.P.C., and when any such request is made, it should contain all the detail and material, which may be sufficient to issue search warrant. There is no provision in Criminal Procedure Code, which allow "EXEMPTION" to a Police Officer not to obtain a search warrant if a Magistrate is associated with a raiding party.
11. Protection of human dignity and privacy of house has been guaranteed being inviolable as provided in Chapter 2 of Self-Governance and (Empowerment Order) 2009. When such a request for search of house is made the Magistrate must apply his judicial mind and must state the reasons, which were considered sufficient for issuance of search warrant.
12. In the case in hand an application was submitted to SDM Gilgit for deputing a Magistrate to conduct a raid on the house of respondent. The concerned Assistant Commissioner without application of mind and without giving a second thought deputed a Magistrate, who accompanied the team of Wildlife and they without search warrant or association of a lady constable stormed the house of respondent. Where his family was also residing. The action of Sub-Divisional Magistrate and the staff of Wildlife department was in utter violation of law and a sheer abuse of authority. The SHO and staff of Wildlife transgressed their authority and violated the sanctity of a house, where they detained the inhabitants of the house for hours. To deprive a person of his liberty, is a detestable act, which cannot and should not be blessed in any manner. Entry into house without permission of its occupants or without a search warrant, no one is authorized to enter into a house of a stranger. Surah An-Noor versus 27 and 28, ordain:- 27.... "0 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."
28.... If ye find none in the house, enter not until permission is given to you, if ye asked to go back, go back, that makes for greater purity."
13. Before parting with judgment, suffice to re-produce the following paragraph from the judgment of the Hon'ble Supreme Court of Pakistan reported in PLD 1998 SC 388:- "Article 14 guarantees to protect dignity of man and the privacy of home which shall be inviolable subject to law. This provision providing for the dignity of man as a Fundamental Right is unparalleled in the Constitution of few countries provide for it. Dignity of man is not only provided by our Constitution, but according to our history and belief, under Islam great value has been attached to the dignity of man and the privacy of home. If a person intrudes into the privacy of any man, pries on the private life, it injures the dignity of man, it violates the privacy of home, if disturbs the peace and tranquility of the family and above all it puts such person to serious danger of being blackmailed. Such acts are not permissible under law and if any occasion arises for such operation, then it can be only in cases of defence and national security."
14. The deputation of a Magistrate with a raiding party without a search warrant was illegal and unwarranted and now it is settled law that when the basic requirement of law is not complied with the subsequent proceeding will be nullity in the eyes of law. It was held in PLD 1972 SC 271:- "If a mandatory condition of for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."
15. The contention of learned counsel finds favour that when the house of the respondent was raided, there was no FIR registered or any complaint was in field, and this submission hold the field as evident from page 8 of the file that there is an application submitted by one Ishaq Ali, (Game Inspector) Wildlife H.Q. Gilgit addressed to Sub-Divisional Forest Officer Wildlife Gilgit and a request is made therein that a Magistrate be requested to accompany the Wildlife team for raiding the house of respondent. The SDFO remarks appearing on the application are that:- "Put up a letter to A.C. Gilgit for issuance of search warrant"
' On page 10 of the file a letter of SDFO addressed to Assistant Commissioner/SDM Gilgit is available which is re-produced as under:- No, PWLG-3 (16)/2015 OFFICE OF THE DIVISIONAL FOREST OFFICER PARKS & WILDLIFE DIVISION GILGIT-GHIZER Dated the 27th January, 2016 To ' The Assistant Commissioner, Sub-Divisional Magistrate HQ, Gilgit.
' Subject:- POLICE SUPPORT. Memo: ' The Range Forest Officer Parks and Wildlife HQ Gilgit has reported this office vide his letter No, Nil dated 27th January, 2016 that Hashim son of Baber Ali resident of Balti Kargah has illegal hunted Astore Markhore at Karga area.
' It is therefore, requested to kindly depute a Magistrate 1st class with constituted team of this Division and also direct the SHO concerned to provide necessary police support to the team in order to apprehend the offender under the Provisions of Wildlife Preservation Act, 1975.
(IJLAL AHMAD)
DIVISIONAL FOREST OFFICER PARKS AND WILDLIFE DIVISION GILGIT-GHIZER.
' Copy to:-
1. The Conservator Parks and Wildlife Gilgit-Ghizer for information.
2. The Deputy Commissioner Gilgit for information and necessary action.
3. The RFO Parks and Wildlife HQ Gilgit for information and necessary action.
4. Office file.
(IJLAL AHMAD)
DIVISIONAL FOREST OFFICER PARKS AND WILDLIFE DIVISION GILGIT-GHIZER.
16. When on 27.01.2016 the said letter was put up before A.C. His remarks which are in his own hand writing are as under:- "Magistrate Chairagh ud Din pl. Co-ordinate with Deptt. Of Wildlife."
The reproduction of above correspondence reveals that no search warrant was issued by the Assistant Commissioner/Sub-Divisional Magistrate. The Magistrate who accompanied the raiding party of Wildlife along with a contingent of police did not bother to associate two respectable of the area to comply with the provisions of section 103, Cr.P.C., and instead of co-opted three of his henchmen and cited them marginal witnesses as per recovery memo available at page 13 of the file. The perusal of recovery memo also speaks a volume about the genuineness of this case as the marginal witnesses namely Shoukat, Khushal and Azhar Hussain have been cited without their parentage or address and on the other hand they intruded in a house like a bull violating the norms of human values.
17. The learned Assistant Commissioner Gilgit without application of mind deputed Magistrate Chairagh ud Din. Where application of mind is inserted upon by law, reasons have to be given to demonstrate the same. Non-application of mind is evident from the remarks of the Assistant Commissioner.
18. In view of the above circumstances the conviction handed down by the Magistrate 1st class dated 27.1.2016 is quashed by exercising the powers conferred upon this Court under section 561- A, Cr.P.C. The appeal filed by the appellant is dismissed. The respondent is present in Court on bail, his bail bonds are discharged and the sureties are relieved from their liabilities.
19. With the above observations, the instant criminal appeal is disposed of. File.