' The petitioners seek quashment of F.I.R. No,409 dated 3-8-1998 registered at Police Station Sadar, Dera Ghazi Khan for offences under sections 10, 13 and 14. Of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 being illegal, tainted with ulterior consideration, mala fide and without lawful authority.
2. The allegations in the F.I.R. As made by the complainant Shimla son of Ghulam Hussain Bandwani Khosa are that he is a milk-seller. On 3-8-1998 at 1-45 a.m. He, Ala-ud-Din and Sadiq Hussain were getting petrol filled in their respective motor-cycles at Haidri Petrol Pump. On the eastern side of the Pacca road is the House of Sheikh Javed Broker where Bilal, Ghulam Yasin and Abid Hussain a servant of Sh. Javed were standing. A lady Mst. Abida wife of Muhammad Bilal was standing. They were bargaining with Abid, whom the complainant already knew, for committing Zina for the night with Mst. Abida whom the complainant knew already. Bilal Hussain often supplied his wife through Ghulam Yasin at Dera Ghazi Khan in lieu of the amount half of which was received by Ghulam Yasin. The complainant further alleged in the complaint that they four went inside the office of Sheikh Javed Broker and he saw by peeping through the window that Abid and Mst. Abida Paryeen were undressed and committing Zina. A raid was conducted. Three men and one woman came out from the office of Sheikh Javed Broker. Ghulam Yasin, Bilal Ahmad and Mst. Abida Parveen were overpowered while Abid Hussain servant of Sheikh Javed Broker ran away.
3. After formal investigation the accused were confined to judicial lockup. They moved for post- arrest bail which was dismissed on 17-8-1998 by the learned Additional Sessions Judge and their post-arrest bail is pending adjudication.
4. The learned counsel for the petitioner has contended that the complaint forwarded by the Assistant Sub-Inspector, Police Station Sadar, Dera Ghazi Khan made by complainant .Shimla before him to the police station and the raiding party constituted thereafter and arrest of the petitioner was not only an act of malice but also an outcome of misuse of lawful authority vested in the A.S.I. Coupled with violation of mandatory provisions of law as enumerated under sections 103 and 165, Cr.P.C. Especially in the light of the injunction laid down in Holy Qur'an and Sunnah in such eventualities. The learned counsel for the petitioners has further submitted that it is admitted on the record that the A.S.I. Recorded the statement of Shimla complainant in the late hours of night calling upon the police to raid a private place which is admittedly in habituated one and that since it was odd hours of the night non-observance of the mandatory provisions of section 165, Cr.P.C.
Bring the entire proceedings of respondent A.S.I. Within the ambit of abuse of process of law as well as Court and this act was full of malice on the face of it. The learned counsel further submitted that after the promulgation of Enforcement of Shariat Act, 1991 (Act X of 1991), Section IV of the Act requires the Court to interpret the statute law consistent with Islamic principle of jurisprudence and the interpretation which advances a principle of policy and Islamic provisions in the Constitution shall be adopted by the Court and that the said Act X of 1991 has been promulgated by the Legislature in view of Article 2A of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel has also referred to the case of Ghulam Sakina v. The State 1991 PCr.LJ 568 in which the Hon'ble Federal Shariat Court observed that the charge of Zina should not be casually brought to the Court or publicized as it shatters the Foundation of family where a female is accused in such a crime and in such-like eventualities human weaknesses should rather be overlooked and ignored unless committed at a public place and becomes cause of concern from Society point of view. The Holy Qur'an prohibits such an act and Verses 27 and 28 of Surah Al-Noor which read as under:-- "27. 0 ye who believe: ' Enter not house 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 (what is seemly).
28. If ye find none in the house, enter not Until permission is given to you, if ye are asked to go back, go back; That makes for greater purity."
' It is also submitted that the principal accused has been admittedly shown as having made good his escape at the time of raid and as such, there was no incriminating evidence at all. The learned counsel for the petitioner has also slated that Muhammad Iqbal Inspector/S.H.O., Police Station Sadar is Mohallaydar of the petitioners and is personally inimical towards family of the petitioners.
The specific instance has been given of F.I.R. No,283 of 1998 registered at Police Station City Dera Ghazi Khan on 23-7-1998 at the instance of Muhammad Zafar, against Iqbal Chandia, S.H.O., Police Station City.
5. On the other hand the learned Additional Advocate-General has submitted that as the F.I.R. Has been registered, the petitioners should give their defence before the Investigating Officer and if the case is found false, the Investigating Officer shall move for cancellation of the case.
6. I have given due consideration to the valuable arguments on both the sides and perused the record with their able assistance.
7. There is no cavil with the proposition that ordinarily an F.I.R. Is not to be quashed and the police should complete its course of investigation and submit a report under section 173, Cr.P.C. But in a case like this where there is no evidence on which conviction could be passed and where there is enmity admitted on the record through criminal cases, and there is gross violation of the law contained in sections 103 and 165, Cr.P.C. And also ignoring the law contained in the Holy Qur'an and Sunnah in Surah Al-Noor and Surah Al Hujurat, this Court can in extraordinary circumstances take notice of the grievance and redress it. The relevant provisions of law are reproduced for ready reference:-- "Section 103. Search to be made in presence of witnesses.--(1) Before making a search under this Chapter, 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 situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized in the course of search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(3) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code."
"Section 165. Search by Police Officer.--(1) Whenever an officer incharge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an-investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station: Provided that no such officer shall search, or cause search to be made for anything which is in the custody of bank or banker as defined in the Bankers' Books Evidence Act, 1891 (XVIII of 1891) and relates, or might disclose any information which relates, to the bank account of any person except- -
(a) for the purpose of investigating an office under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477-A (both inclusive) of the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge; and
(b) in other cases, with the prior permission in writing of the High Court.
(2) A police officer proceeding under subsection (1) shall, if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time he may after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer and order in writing specifying the place to be searched and, so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place.
(4) The provisions of this Code as to search warrants and the general provisions as to searches contained in section 102, section 103 shall, so far as may be, apply to a search made under this section.
(5) Copies of any record made under subsection (1) or subsection (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate: ' Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost."
8. This section empowers the police officer specified to make a search without warrant subject to certain safeguards. The prerequisites for a search as per this section are that:
(i) Search must be necessary for investigation.
(ii) The offence must be such as the police officer is authorised to investigate, i,e, a cognizable offence.
(iii) Reasonable grounds must exist for believing that the thing required will' be found in a place.
(iv) There would be undue delay in getting the thing in any other way.
(v) Grounds of belief as to necessity of search must be previously recorded by the police officer.
'These conditions must be fulfilled and there should be no misuse of the power nor there should be any harassm ent. The perusal of the section also leaves no doubt that it does not apply when search is for arrest of the accused. The search envisaged by this section is to be made for a specified thing. A person is not a thing. In the case of Ashiq Din etc. v. The State PLD 1968 Lah. 1425 where police did not record in writing in Roznamcha grounds for making search of the house of the accused, it was held that it was without jurisdiction and bad in law.,
9. Sections 10, 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are reproduced as under:-- "10. Zina or Zina-bil-Jabr liable to Ta'zir.--(1) Subject to the , provisions of section 7, whoever commits Zina or Zina-bil-Jabr which is not liable to hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of Qazf liable to hadd has not been awarded to the complainant, or for which hadd may not be enforced under this Ordinance, shall be liable to ta'zir.
(2) Whoever commits Zina liable to ta'zir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine. .
(3) Subject to subsection (4), whoever commits Zina-bil-Jabr liable to ta'zir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty-five years and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping numbering thirty stripes.
(4) When Zina-bil-Jabr liable to ta'zir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death."
"13. Selling person for purposes of prostitution, etc.--Whoever sells, lets for 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 for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.
' Explanations.--(a) When a female is sold, let for hire, or otherwise disposes of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female, shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.
(b) For the purposes of this section and section 18, 'illicit intercourse' means sexual intercourse between persons not united by marriage."
14. Buying person for purposes of prostitution etc.--Whoever buys, hires or otherwise obtains possession 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 for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.
Explanation.-Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution."
10. Article 14 of the Constitution is also relevant in this case which reads as under:--
14. Inviolability of dignity of man etc.--(1) The dignity of man and subject to law, the privacy of home, shall in violable.
(2) No person shall be subjected to torture for purposes of extracting evidence.
11. Privacy of home is protected by this Article but this protection is subject to law. If, therefore, law permits an official to enter a house as, for example for the purpose of making an arrest or to make a search, there would be no violation of the Article. Eavesdropping, tapping, stealthily or photographing something inside the house are invasions of privacy. Sections 10, 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 165, Cr.P.C. Do not envisage the search of a house to search for a person. This Court in the case of Riaz v. S.H.O. PLD 1998 Lah. 35 has held that there is no provision in Cr.P.C. To warrant issuance of an order for search of a house on an incognitio/anonymous information that Zina was being committed. It was also held in the said case that common practice of police to register cases under Zina Hudood Ordinance on report of Mukhbar is totally unwarranted and against the Injunctions of Islam.
12. In this view of the matter, crime case bearing F.I.R. No,404 of 1998, dated 3-8-1998 at Police Station Dera Ghazi Khan under sections 10 and 13 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 on the complaint of respondent No,4 is declared to be illegal, tainted with .Ulterior consideration, mala fide and without lawful authority and as such, the same is quashed in exercise of the Constitutional jurisdiction.