The S.P. Has reported that the allegation that Mr. Yaqoob Head Constable had committed Zina with Mst. Rifat, the wife of Muhammad Nawaz respondent was not well-founded. According to his report there was bickering between the husband and wife and nothing more. Since the report has been submitted by the S.P. After inquiry so if the petitioner still thinks that the offence has been committed as alleged in the writ petition, he may approach the competent Court of criminal jurisdiction for further action, if desired. Disposed of.
2. Before parting with the writ petition notice of illegality committed by Atif Hayat Inspector/S.H.O.
Police Station Batapur may be taken note of. It is clear from the inquiry report submitted by the S.P.
That Mst. Rifat, the daughter of Muhammad Nazir writ petitioner and her husband Muhammad Nawaz respondent had differences. It is also stated at the bar by the learned counsel for the petitioner that a suit for dissolution of marriage was also pending in the Family Court at Lahore.
However, when questioned the S.H.O. Has produced two applications, one by Ch. Muhammad Hanif (Chairman Union Council Jallo) and the other by Mst. Akhtar Bibi (the mother of Muhammad Nawaz respondent). The Chairman moved application to the S.H.O. That Mst. Rifat, wife of Muhammad Nawaz respondent, had committed theft at the house of her husband and so a report be entered. The other application by Mst. Akhtar to the S.H.O. Was with the allegations that Muhammad Nawaz was her son, her husband had died since 3/4 years, her son had been married since 3/4 months, his wife was estranged with him and was brought back on 1-10-1991, after reconciliation and during her son's absence from the house, she (Mst. Rifat) had taken away an amount of Rs.9,500 and some clothes. It is on the basis of these two applications that a police party was sent to fetch Muhammad Nazeer, Mst. Rifat etc. And consequently as is the inquiry report by the S.P., Mst. Rifat and their guest Din Muhammad were brought to the police station. The further allegation is that they were kept in the separate rooms for the night and the Head Constable committed Zina with Mst. Rifat.
3. Leaving aside this question of Zina which might be the subject of a private complaint, question arises, had the S.H.O. Jurisdiction to enter upon in this matter where no cognizable offence had been committed or take any action in sending the police contingent to fetch up the petitioner and his family members, is it not entirely illegal? The answer must be in not positive. When questioned, the S.H.O. Had to admit that from the two applications moved by Mst. Akhtar and the Chairman no cognizable offence was made out, all the more so even if the wife had removed some articles. In the circumstances, no theft can be said to have been committed. It was purely a dispute of domestic nature between the husband and wife. Under section 157, Cr.P.C. The police is to take cognizance of a cognizable case and after registering the same to enter upon the investigation and where a non-cognizable offence is committed only under the order of the competent Court as provided in section 155(2) ibid a police officer can enter upon the inquiry. Neither the S.H.O. Had the jurisdiction inasmuch as no cognizable offence had been committed nor any order from the Court had been obtained to enquire and report. The act of the S.H.O. In deputing the subordinates to fetch up the family members of the petitioner and Mst. Rifat was without jurisdiction. It was clear interference in the domestic life of a poor family and a dispute between the husband and wife of civil nature. Had this illegal act not been done by the S.H.O. Neither the habeas corpus petition nor the present writ petition would have been necessitated. The act of the S.H.O. Being illegal, without jurisdiction and undue interference in the domestic life of the citizens, calls for severe action. Since he is responsible for putting the petitioner to the expense of moving the High Court so he (the S.H.O.) is burdened with Rs.3,000 as costs for it. This he would pay in his personal capacity. The Inspector is directed to deposit the money in Court within 10 days for payment to the writ petitioner.