' This criminal revision by Mst. Bulbulai widow, Mst. Sardaro daughter and Ghulam Farid son of Nabiullah caste Marwat, residents of Mohallah Nunarianwala, D.I. Khan City, is dire9ted against the judgment dated 5-5-1983 of Malik Muhammad Parvez Khan, Sessions Judge, D.I. Khan whereby he dismissed appeal of the petitioners against the order dated 28-2-1983 of Mr. Saadullah Khan, Assistant Commissioner and Magistrate First Class, D.I. Khan, vide which he had convicted Mst.
Sardaro and Mst. Bulbulai under section 4 of the West Pakistan Suppression of Prostitution Ordinance, 1961 and sentenced them each to undergo six months' R.I. He had further convicted Mst.
Bulbulai under section 6 of said Ordinance and sentenced her to nine months' R.I. Ghulam Farid was also convicted under section 6 of the Ordinance and sentenced to six months' R.I. The sentences under sections 4 and 6 in the case of Mst. Bulbulai were directed to run concurrently.
2. Facts of the prosecution case leading to the conviction and sentences of the 3 petitioners may be briefly stated thus: on 17-9-1981 one Muhammad Aslam Khan son of Allah Bakhsh Khan caste Baloch resident of Mohallah Nunarianwala, D.I. Khan City made an application (Exh. P.K.) to the Superintendent of Police, D.1. Khan alleging therein that the petitioners Mst. Bulbulai alias Ghatta and Mst. Sardaro (Petitioners herein) who were mother and daughter inter se were of bad character and due to the immoral activities have been divorced by their husbands and that both the ladies were indulging in prostitution under aegis of Ghulam Farid (Petitioner) who is the son of Mst. Bulbulai and brother of Mst. Sardaro. It was further alleged that while the complainant was absent from his house the three accused took away much of his belongings but subsequently on oath he exonerated them, that the petitioners accused have adopted the attitude of pelting stones in the house of the complainant at night time and that this pelting of stones is not restricted to the house of complainant but is extended to houses of the other Mohallandars as well. It was further agitated that people of bad character were visiting the house of the accused-petitioners and the inhabitants of the Mohallah were very much perturbed at their activities. This application was marked to A .S.I. / Baqir, City, D.I. Khan for enquiry and taking legal action by the Superintendent of Police, D.I. Khan. On 19-9-1981 a similar application (Exh. P.F.) was also submitted to the Assistant Commissioner, D.I. Khan by the said complainant Muhammad Aslam which was marked by A.C., D.I.
Khan to S.H.O. City, D.I. Khan for report. After making such enquiry as the Local Police deemed appropriate complaint was put in the Court of A.C., D.I. Khan on 1-10-1981, who, after recording the statements of the P.Ws., the accused and defence witnesses convicted and sentenced the three accused petitioners as stated earlier.
3. I have heard arguments of the learned counsel for the petitioners and the learned A.A.-G., for the State. Also I have thoroughly scrutinized the material brought on record.
4. Before entering into the case on factual side I would like to see to the bona fide of the actions taken by the Local Police. As observed earlier application which is dated 17-9-1981 (Exh. P.K.) was addressed to the Superintendent of Police. It was marked to A.S.I/Baqir, City, D.I. Khan for enquiry and taking legal action. This endorsement is not even made by the Superintendent of Police but someone else on behalf of S.P. Immediately on receipt of this application the Local Police, rather the A.S.I, started investigating the matter, as would appear from the statements recorded under section 161, Cr.P.C. Of S. Habib Shah, Muhammad Nawaz, Muhammad Aslam, Sawan Khan, Malik Ranjhu, Muhammad Rafique and Sharif Muhammad. It was argued by the learned counsel for the petitioners that the Local Police was not justified nor authorised to enter into the investigation of the case without prior sanction of a Magistrate having powers as required by section 155(2), Cr.P.C.
Which reads:- "No Police Officer shall investigate a non-cognizable case without the order of the Magistrate First or Second Class having power to try such case or send the same for trial to the Court of Sessions."
' This objection was also raised by the learned counsel for the petitioners before the learned Sessions Judge as well but the learned Sessions Judge overruled it by observing that:- "In the instant case, however, not only on the basis of the authorities referred to by the learned Public Prosecutor, but also in view of the application addressed to the learned Illaqa Magistrate, the investigation commenced against the accused appellant and when the Local Police was satisfied from the evidence, it submitted the complaint against the accused-appellant before the Illaqa Magistrate."
The learned Sessions Judge gravely erred in not taking into consideration the facts that it was not on the complaint marked by the A.C/M.1.C., D.I. Khan dated 19-9-1981 but as a matter of fact the application dated 17-9-1981 (Exh. P.K) that the Local Police took the investigation in hand. I am fully supported in this respect by the perusal of the statements recorded by the Local Police, referred to above. All the A statements were recorded on 17-9-1981, prior to the application made to the Assistant Commissioner. Obviously by that time there was no order of the Magistrate. Law on the other hand requires that where a power is given to do a certain thing in a particular way it must be performed in the same manner. It was held in Mst. Mumtaz Baigum and 4 others v. State 1968 P Cr. L J 97:- "It is now a well-settled proposition of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance of that act are necessarily forbidden. The entire investigation done by the Sub-Inspector, where he had not obtained permission of the Magistrate, was a nullity and could not be the basis of a report."
' This view has further been elaborated in the authority reported as Peero v. State 1982 P Cr. L J 795.
It was held:- "If a Police Officer is permitted to make investigation even into non-cognizable cases despite the express bar imposed by subsection (2) of section 155, Cr. P.C., he would be free to convert any non- cognizable case into cognizable one at his choice and in this way there would be absolutely no check on police action with the result that undue harassment to the litigant public would follow.
There appears great wisdom in the division of offences into cognizable and non-cognizable categories and for obvious reasons the Legislature prohibited Police Officer from investigating non- cognizable offences. If the provision relating to express bar placed on Police investigations is not construed strictly, not only the purpose underlying the provision would be frustrated but also the provision itself would be rendered nugatory."
' As stated earlier the application (Exh. P.K.) which was addressed to the Superintendent of Police was marked to A.S.I/Baqir City, D.I. Khan. Marking of application in such manner leads to the presumption that the applicant Muhammad Aslam persuaded the authorities to mark the application to the A.S.I. Of his choice. In the ordinary course such like applications are addressed to the S.H.O. Who in turn refers the matter to the A.S.I. Of the area or in his wisdom may take the investigation in his own hand. It is also worth noticing that the application was not marked for enquiry and legal action by the Superintendent of Police to whom it was addressed, on the other hand it was so marked by someone on behalf of the Superintendent of Police. The hasty investigation completed almost on that very day that is 17-9-1981, when it was sent to the A.S.L, would also lead one to the conclusion that there was some pre-understanding between the A.S.I.
(Baqir) and Muhammad Aslam applicant. The possibility cannot altogether be excluded that at the behest of Baqir A .S.I., Muhammad Aslam submitted the application to the Superintendent of Police and managed to get it marked by name to the A A.S.I.
5. Muhammad Aslam applicant while appearing as P.W. Stated in Court that the accused have no ostensible means of livelihood and that they live on prostitution, that customers frequently visited their house in suspicious condition and that he personally saw Mst. Bulbulai and Mst. Sardaro inviting customers by exposing their bodies and other indecent gestures. He also went on saying that Ghulam Farid procures customers and brings them to his house. He also mentioned that Nabiullah, husband of Mst. Bulbulai and father of Sardaro had abandoned them on account of their undesirable and unlawful activities. In cross-examination he admitted that there was a mosque in the Mohallah where there was an Imam as well; that he had not caught any person engaged indulging in the immoral act with Mst. Sardaro and Mst. Bulbulai red-handed; that he did not report the matter to the Local Police or any other competent authority against the accused in writing. He averred that he had brought the situation into the notice of notables of the locality. He admitted that he has not cited Muhammad Ayyub, Lambardar of the Mohallah and Imam Masjid as witnesses. It may be observed here that in the application addressed to the Superintendent of Police he has cited nobody as a witness to the allegations while in his subsequent application addressed to the Assistant Commissioner, D.I. Khan, he did cite certain people as the witnesses. He, however, did not know if Farid accused was in the employment of Mr. Fazal Elahi, Executive Engineer. Syed Habib Shah another prosecution witness has said that the petitioners accused were residing in the Mohallah for the last 6/7 years in a rented house adjacent to his house and that both Mst. Bulbulai and Mst. Sardaro have been indulging in prostitution with the active connivance of co-accused Farid: that the Mohalladars were fed up with the abnoxious activities of the accused.
He admitted in cross-examination that he did not see anybody engaged in actual intercourse with either Bulbulai or Sardaro. He denied the suggestion that Farid accused was in the Government Service working with Mr. Fazal Elahi, Executive Engineer. Muhammad Rafique P.W. Narrated that the accused family had no ostensible means of livelihood and as far as he knew they were living on prostitution. In cross-examination he admitted that he had no house in the Mohallah. He rebutted the suggestion that there was a Mosque situate close to the house of accused. He also denied that there was a permanent Imam of the Mosque. He also admitted that he did not see anybody committing adultery with the accused. He also could not name the customers. He stressed that he had seen the accused with customers negotiating prostitution and making payment to the accused for the purpose but he did not catch hold of any such person nor did he report the matter to the Police. He affirmed that their Mohallah is a thoroughfare and people do move about in the said Mohallah without any restriction and that accused Farid was in the employment of Mr. Fazal Ilahi, Executive Engineer on the daily wages of Rs, 80 or so. Sawan Khan P.W. Submitted that the accused were living in their Mohallah for the last about 12 years and were indulging in prostitution since then. He admitted that there was a Mosque near the house of the accused and the Imam remains in the Mosque during the day time; and that a son of the respondent Mst. Bulbulai is employed in Kohat Textile Mills. He admitted that he hails from village Maddi, Tehsil Kulchai. Sharif Muhammad Ex-Municipal Councillor in his statement agitated that the inhabitants of the Mohallah Nunarianwala frequently complained to him about the immoral activities of the accused Mst.
Bulbulai; that Mst. Bulbulai is a well-known prostitute and the people of the locality are very much fed up from her. In cross-examination he admitted that he had not informed the Police about the activities of the accused; that Muhammad Ayyub is the Lumbardar of their Mphallah and that he did see people of bad character visting the house of the accused. He named one Nisar Ahmad Cloth merchant who was usually visiting the house of the accused. He admitted that neither he nor the Mohalladars tried to catch hold of said Nisar Ahmad. He confirmed that there is a Mosque adjacent to the house of the accused. But there was no permanent Maulvi appointed to the said Mosque. He admitted that there was a thoroughfare passing in front of the house of the accused.
Muhammad Nawaz P.W. Besides the accused petitioners named one Mst. Janaro as well indulging in prostitution. He claimed that petitioners have no means of livelihood except prostitution; that in the presence of the Inspector Police and the Police party who had come to investigate the case, the petitioners pelted stones and brickbats on them. He admitted in cross-examination that they had not informed the Lumbardar of the Mohallah about the evil habits of the accused. Instead they informed the Municipal Councillor of the locality about the bad activities of the accused. He admitted that he did not see anybody engaged in the intercourse with the accused namely Bulbulai or with her daughter. He denied that Faridullah is an employee of Mr. Fazal Ilahi, Executive Engineer. He also affirmed that there was a Mosque adjacent to the house of the accused and that there was a Maulvi also in the said Mosque. He denied the suggestion that his maternal-uncle was the Maulvi of the said Mosque. He testified that Sawan P.W. a Gandapur by caste was the resident of village Hathala. Muhammad Farid Khan Inspector asserted that the petitioners accused were of bad character and running the business of prostitution. In cross-examination, he admitted to have completed the entire proceedings of the case within two hours. He confirmed that the petitioners- accused have never been convicted during his tenure of service as City Inspector and that he did not record the statement of the Lumbardar, on the other hand he recorded the statement of the Council or. He, however, denied the suggestion that there was any Mosque near the house of the accused.
6. Hafiz Shah Ahmad D.W. On the other hand stressed that he is Imam Masjid and remains in the Mosque performing his religious duties that he had seen nobody visiting the house of the petitioners; that there was a quarrel and dispute between the Mohalladars and the petitioners over the ejectment of the latter; that he is the Pesh Imam of the Mosque for the last 20 years; that had he seen any stranger entering the house of the petitioners for the purposes of prostitution he would have been the first man to arrest him and proceed against him accordingly.
7. The aforesaid brief resume of the statements of the prosecution witnesses never suggest, muchless prove, that either of them saw Mst. Bulbulai or for that matter her daugher Mst. Sardaro dealing in prostitution. The evidence on record on the other hand clearly indicates that despite the fact that the accused are living in Mohallah for the last 12 years, although some of the witnesses have stated that they are so residing in their Mohallah for the last 6/7 years, it was through the application dated 17-9-1981 that the ball was set rolling. It is also in the statements of the P.Ws. That the Lumbardar of the Mohallah is B Muhammad Ayyub and not Sharif Muhammad. This Muhammad Ayyub Lumbardar has not been produced by the prosecution in support of its allegations. In the address recorded by the trial Court of Sharif Muhammad P.W., he is shown as Ex- Councilor. If the prosecution version is taken to be true and it is also believed that the accused were indulging in the immoral activities, what prevented Sharif Muhammad to take up the matter particularly at a time when he was the Councillor of the Illaqa and admittedly having support of people of the locality. It is also on the record that neither of the P.Ws., except Sharif Muhammad, could name any individual who was in liaison with the accused. Sharif Muhammad, however, named one Nisar Ahmad Cloth merchant visiting the house of the petitioners with the evil designs but he did not name him in his statement recorded by the Police under section 161, Cr.P.C. It is worthy of mentioning that in his application (Exh.P.K.) Muhammad Aslam did not cite anybody to be a witness to prostitution or to support his allegation. It appears that people of his choice were examined by the Local Police as a result of his application (Exh.P.K.) and when he succeeded to procure such people who were ready to follow his track, in his subsequent application (Exh.P.F.) he readily cited those as witnesses who were examined by the Police earlier to his application (Exh.P.F.). In other words it can well be concluded that investigation was completed and statements of the P.Ws. Recorded before the application (Exh.P.F.) was submitted to the Assistant Commissioner/Magistrate First Class, D.I. Khan. It is also in the evidence of almost all the P.Ws. That the house of the accused is situated on a thoroughfare and people do pass without any restriction.
In the absence of any substantial evidence referring towards the prostitution of Mst. Bulbulai or for that matter her daughter Mst. Sardaro, the improvements made by the prosecution witnesses in their statements before the trial Court coupled with the statement of Imam Masjid whose Mosque is situate just close to the house of the accused and the fact that house of the accused is situated on thoroughfare where the Public in general pass through without any restriction it cannot be presumed that the accused were indulging in prostitution. Prostitution under the West Pakistan Suppression of Prostitution Ordinance, 1961 means "promiscuous sexual intercourse for hire, whether in money or coin". Now no one from the prosecution side has been able to establish this factum of prostitution against any of the two ladies and therefore, their conviction under section 4 of the West Pakistan Suppression of Prostitution Ordinance, 1961 was not called for.
As for as the conviction of Mst. Bulbulai and her son Ghulam accused under section 6 of the said Ordinance, it also cannot be maintained. Section 6 (ibid) reads:- "Punishment for living on earnings of prostitution.--(1) Whoever being above the age of eighteen years.
(a) knowingly lives, wholly or in part, on the earnings of another's prostitution, or
(b) exploits the prostitution of another person, whether with or without the person's consent, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both, and if the person convicted is a male he may be punished with whipping in lieu of or in addition to any other punishment provided in this subsection.
(2) Presumption.--Where any person is proved to be living with, or to be habitually in the company of, a prostitute or is proved to have directed or exercised control or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting, compelling, or to be keeping or managing or assisting in the management of a brothel, it shall be presumed, until the contrary is proved, that he is knowingly living on the earnings of prostitution.
The bare reading of the aforesaid section provides that whosoever knowingly lives on the earnings of another prostitution or exploits the prostitution of another person is guilty of the offence under this section. Since, however, it has not been proved by the prosecution that Mst. Sardaro is in fact indulging in prostitution it cannot be presumed that Mst. Bulbulai or for that matter Ghulam Farid were living on the earnings of prostitution. Undoubtedly a person proved to be living with or to be habitually in the company of a prostitute shall be presumed, until the contrary is proved, to be knowingly living on the earnings of the prostitution. Firstly as I have stated earlier prostitution has not been proved muchless to presume that Mst. Bulbulai and her son Ghulam Farid are living on the earnings of prostitution. At the same time it is in the evidence of the prosecution witnesses that Ghulam Farid is employed with Executive Engineer C.R.B.C. At the daily wages of Rs,80 per day. It is also in the evidence of the prosecution witnesses that another son of Mst. Bulbulai is employed in the Textile Mills at Kohat. It cannot, therefore, be logically or validly presumed that the family was living on the earnings of prostitution. No doubt Muhammad Rafique P.W. While admitting the factum of Ghulam Farid in the employment o Fazal Ilahi, Executive Engineer on the daily wages of Rs,80 also stated that he has recently taken this appointment and that previously he was jobless, but if Ghulam Farid had taken employment by the time Muhamad Rafique was examined in the Court, prior to it there was no complaint, of whatever nature against the accused that they were indulging in prostitution.
9.From whatever angle I may look to the case in hand, it appears to be a fabricated one. The possibility that the charge was levied with a view to force the accused to vacate the rented house, also cannot altogether be excluded. It is, therefore, a fit case in which this Court must interfere.
9. Accordingly while I accept this criminal revision set aside the conviction and sentences awarded to the 3 accused-petitioners. They are all on bail they are set at liberty and are discharged of the liability of the bail bonds.