' This writ petition has been filed under Article 199 of the Constitution of Pakistan, 1973 for the quashment of F.I.R. No,350 registered on 28-10-1999 at Police Station Kotwali, Sialkot under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 216, Pakistan Penal Code.
2. Faqir Hussain, 5.-I. Police Station Kotwali, Sialkot received a secret information on 28-10-1999 while he was on Gasht of the area in the company of Muhammad Sarwar Constable and Javed Iqbal, Constable that one Mst. Irshad alias Shado carried on the business of providing females for prostitution in her house and that even the absconders of criminal cases visited her. He was imparted the information by the informant that Baz Khan accused of Crime Case No,25 of 1999 registered under section 324, Pakistan Penal Code at Police Station Kotwali, Sialkot was in her house who could be arrested in case the immediate raid was effected. Faqir Hussain, S.-I. Reached the house of Mst. Irshad Begum alias Shado situated in Mohallah Muhammadpura, Sialkot in the company of his aforesaid subordinates. Baz Khan and Mst. Irshad Begum made good their escape.
However, one male and one female were seen lying on a cot in compromising position preparing for Zina. They were apprehended who were none else than Farooq Ahmad petitioner-accused as well as Mst. Shamim Akhtar co-accused. Faqir Hussain, S.-I. Sent the complaint to the S.H.O. Police Station Kotwali, Sialkot where formal F.I.R. No,350, dated 28-10-1999 was registered at 8-15 p.m.
3. Feeling aggrieved Farooq Ahmad petitioner has filed this petition for the quashment of the F.I.R.
On the ground that the case was simply false and based on mala fides.
4. The comments have been received wherein the police has taken up the stand that the protection was given to the proclaimed offender by Mst. Irshad Begum and that Farooq Ahmad petitioner was found in compromising position with a female who were preparing to perform the sexual intercourse by consent.
5. The comments and report are treated as the written statement.
6. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General and gone through the record before me. The main contention of the learned counsel for the petitioner is that the petitioner was not present at the place of occurrence and that through falsehood the petitioner was involved. He added that the police has coined a device to enter the houses of others by taking up the stand abdut the arrest of some fugitive from law even though no incident had taken place. According to him it is simply against the human conduct that the female Mst. Irshad Begum made good her escape in the presence of the police contingent. He built the point that the police could not enter the house without permission. On the contrary the learned A.A.-G. Laid the emphasis that it is a case which revolves around factual aspect and the F.I.R.
Cannot be quashed as required and desired by the petitioner.
7. I would express that the reasoning adopted by the learned counsel for the petitioner has to prevail. The police has coined a device to enter the house of others by recording the F.I.Rs, to the effect that some fugitive from law was present in a house and to justify their entry the matter is processed with and generally one male and one female are apprehended on the ground that they were preparing to commit Zina by consent. It has been herd that in Riaz v. S.H.O., Police Station City Jhang and 2 others PLD 1998 Lah. 35 that even a search warrant could not be issued for detection of commission of Zina. It means that for the purpose of detection of commission of Zina by any person including an absconder the police cannot enter the house of any person. No permission was obtained by the police in terms of sections 47 and 48 of the Code of Criminal Procedure for the search of the place. Without the request of admittance in the house the police could not enter the house of Mst. Irshad Begum. The mere mentioning of the entry on the basis of the arrest of a fugitive from law would not justify and grant the jurisdiction to the Police Officer to enter the house of Mst. Irshad Begum. My experience has made me to express that one or two fugitive from law are named on the First Information Report so that the police can exercise its jurisdiction in an autocratic manner to arrest the absconders and on the basis of their presence in a house unauthorised entry is made by the police which can well be termed to be a trespass according to the law of the land. It would be proper to express at this stage that section 216, Pakistan Penal Code has been added by the police which deals about the harbour and concealment of an absconder- accused in a house. The dictionary meaning of word "conceal" are "keep secret, to hide completely or carefully, act or state of hiding". The dictionary meaning of word "harbour" are "place of safety or refuge or shelter, asylum". It is simply surprising that in the presence of many Police Officers both Mst. Irshad Begum owner of the house and Baz Khan absconder succeeded in making good their escape. For how much time Baz Khan absconder was concealing or harbouring in the house of Mst.
Irshad Begum is not mentioned. It seems that everything has been taken in routine. Consequently, it can safely be held that the fact of concealment and harbour of a fugitive Baz Khan is simply false and also other fact of attempt of Zina by consent is false. I, therefore, hold that it is a fit case for quashment of F.I.R.
8. For what has been said above, I accept this writ petition and quash F.I.R. No,350. Dated 28-10- 1999 registered at Police Station Kotwali, District Sialkot and under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 216, Pakistan Penal Code. No order as to costs.