1. ' The petitioner, through her learned counsel, has filed this petition for registration of F.I.R. Against the proposed accused mentioned in the memo. Of petition. On this petition notice was directed against the respondents and in response whereof respondents Nos.3 and 5, Riaz Ahmed and Ghazala Saeed, have appeared and submitted their respective replies in the shape of counter- affidavit and comments.
2. ' Facts, briefly stated, are that respondent No,4, ex-wife of Samiullah Siddiqui, the elder brother of the petitioner, having certain litigation with her husband in Civil Court and in consequence of decree passed in her favour, filed Execution Application bearing No,5 of 1995 in the Court of IIIrd Civil/Family Judge, Karachi East. In order to recover the decretal amount, the learned Judge directed the Assistant Commissioner (Revenue), Karachi East to recover the said sum from Samiullah Siddiqui who, after having spot enquiry, informed the Court vide his letter, dated 18-9- 2000 that said Samiullah Siddiqui was not a resident of the address given by the Court and requested to provide the fresh address. It is further averred in the memo. Of petition that the learned IIIrd Civil/Family Judge, Karachi East insisted the Assistant Commissioner (Revenue), Karachi East to have another enquiry and as such the said A.C. Issued a warrant against said Samiullah Siddiqui through S.H.O. Of Al-Falah Police. Station, Karachi East who also, after having detailed enquiry, reported the similar position. It has, further, been averred in the memo. Of petition that till 1997 Samiullah Siddiqui was residing in the said rented house as a member of entire family as per the customs of joint family system and due to serious family disputes left for unknown place and till to date his whereabouts are not known to the family members of the petitioner nor the said Samiullah had ever contacted since his leaving the house. However, the said house was purchased by another brother of the petitioner viz. Rafiullah on or about 26-4-2000 and the petitioner being a working woman and married is paying rent for the ground floor in her occupation.
3. ' However, on or about 9-4-2002 the learned IIIrd Civil/Family Judge, Karachi East issued a warrant in the name of Samiullah Siddiqui and respondent No,2 entrusted the execution of the same to respondent No,3 who recorded the statements of as many as four witnesses who have stated in their respective statements that Samiullah Siddiqui is not a resident of house, in question, but while submitting his report he with the malicious reasons declared all the witnesses to be near relations of Samiullah and further alleged that said Samiullah is avoiding to come before the police fearing of his arrest. He also declared Samiullah Siddiqui as an inmate of the house, in question, and held him underground due to the fear of arrest in his another report, dated 25-4-2002 whereupon the learned Family Judge issued a non-bailablewarrant by using form prescribed in Criminal Procedure Code and consequent to that respondent No,3 attacked on the residence of the petitioner on the instructions of respondents Nos.1 and 2 by staging a conspiracy and pushed the outer door entrance of the house of the petitioner with foots and gun buts and forcibly entered the house when the petitioner, her husband and their minor daughter were in deep sleep. They asked the petitioner to open boxes and almirahs and started searching alongwith respondent No,5 and his companions A.S.-1. Police Nadeem, besides one lady constable and one person in plain clothes and disclosed that in execution of warrant against Samiullah Siddiqui they have entered 'in the house. It has, further, been averred that electric power failed in the meantime and taking advantage of such situation, respondents Nos.3, 4, 5 and their companions took out Rs,50,000 and gold ornaments worth Rs,15,000 from the box. According to the petitioner, she immediately rushed to the police station alongwith her husband and brother and informed the Duty Officer regarding the commission of offence but the Duty Officer flatly refused to register the F.I.R. And advised her to wait till morning when the S.H.O., respondent No,2, herein, would be available. She visited the police station on the next day but was informed that S.H.O. Was busy in patrolling duty. She tried to get her written complaint acknowledged but the same was refused to be received by the officers present at the police station. She has, therefore, approached this Court invoking its Constitutional jurisdiction for registration of F.I.R. Against respondents Nos.1 to 5.
4. ' In the comments filed on behalf of respondent No,2, it has been averred that the petitioner in order to give shelter to Samiullah Siddiqui has filed this Constitutional petition which otherwise is not maintainable in view of the fact that the witnesses from Mohallah gave false statement about the ignorance of whereabouts of Samiullah Siddiqui and those witnesses are liable to be punishment for giving false statements. Furthermore, according to respondent No,2, in case of not residing in the house, in question, the legal heirs of Samiullah Siddiqui are legally bound to tell his address of residence or working place. It has, further, been averred in the comments that in case of non- availability of a person, writing of word "had already gone underground" is not violation of any law and instead. It has, also, been averred that A.S.-I. Syed Riaz Ahmed visited the given address of Samiullah alongwith a lady Constable and Mst. Ghazala and knocked the door of Samiullah in presence of Mohallah people but instead of offering any cooperation, brother-in-law of Samiullah Siddiqui namely Aleem Asghar threatened the A.S.-I. For making complaint for supporting Mst.
5. Ghazala in the service of non-bailable warrant, and therefore, the said A.S.-I. Came back and also made an entry in the station diary to this effect. It has, also, been averred in the comments that family has also issued show-cause notice to him for non-service of warrant and that Head Moharrir of the said police station was also suspended and shifted from the said police station on the complaint of Mst. Ghazala (respondent No,5) as lie is also in the habit of making complaints against police. He has also denied the entry in the house of the petitioner on the part of the police.
6. He has also denied the fact that the petitioner had approached the said police station for registration of F.I.R. Lastly, it has been prayed that petition may be filed and the petitioner may be directed to cooperate with the police for service of warrant upon Samiullah.
7. ' In the counter-affidavit, filed on behalf of respondent No,5, similar averments as of respondent No,2 in his comments, have been reiterated besides admitting the visit at the house of the petitioner in the company of respondent No,3, a lady constable and a constable.
8. ' I have heard the argument of the learned counsel appearing on behalf of respective parties.
9. ' It has been contended by the learned counsel for the petitioner that respondents Nos.l and 2 are duty bound to register the case/F.I.R. Under section 154, Cr.P.C. Against the delinquent respondents Nos.3 to 5 and their companions for not only committing robbery of cash of Rs,50,000 and gold ornaments valued at Rs,15,000 but also for entering in the house of the petitioner illegally abusing their official position and are at large due to their influence in Police Department. It has, also, been contended that the copy of Station Diary No,68 shows that in such a late night of 21-5-2002 respondent No,3 in company of respondent No,5 and his companions attacked the house of the petitioner in violation of law as the warrant/process/summons/notices of Civil Courts are only executable during sun-rise to sun-set and his accompanying with respondent No,5 proves total mala fides on the part of respondent No,3 and his companions.
10. ' Learned Additional Advocate-General has raised objection about the maintainability of the petition in view of pendency of civil litigation between the parties.
11. ' I have considered the arguments, advanced on behalf of the respective parties.
12. ' Besides the admission in respect of visit to the house of the petitioner by respondents Nos.3 and 5 alongwith lady searcher and a constable for execution of warrant of Civil/Family Court, which too, in late hours of 21-5-2002 i,e, 1-30 a.m. As evident from Roznamcha report, filed by respondent No,2 himself, ignoring the statements of witnesses Rafiullah, Haleem Asghar, Ghulam Ahmed and Mumtaz Hussain stating that Samiullah Siddiqui was not residing in the house where the petitioner lives, respondent No,3 has also admitted that he had received applications of the petitioner through his senior officer which he sent to the quarter concerned with the necessary reports as due procedure. The averment of respondent No,3 with regard to the habit of respondent No,5 for making applications against the Police Officers also creates doubt that police officials either being impressed or in connivance with respondent No,5 took a harsh step by attacking the house of the petitioner in late hours of the night only to execute warrant of Family Court which could have been executed in day time. I am surprised that for executing warrant issued by a Family Court, the personnels of Police Station Al-Flah became so vigilant so that they went to the house of the petitioner in the late hours of the night when a citizen of this Islamic Republic of Pakistan is very much entitled to get relieved of all the pains which he suffered during the day time for earning his livelihood or doing house jobs. It is also strange that area police required assistance of respondent No,5, who is a lady, in the late hours of a night, to get the warrant executed upon some one though on that very address, according to their own comments, they had visited for recording statements of the witnesses with regard to the residence of Samiullah Siddiqui and for whom they have sought recommendation for strict action for giving false evidence that Samiullah Siddiqui is not residing.
13. This Court can take judicial notice of the circumstance prevailing in our country specially in Karachi City where when a police mobile vehicle fails to have clear road due to rush of traffic, immediately starts emergency siren though that emergency siren is only permissible when such mobile vehicle is going for emergency purpose then how it is possible that a police mobile goes on the petitioner's house and brother-in-law threats inmates of such mobile vehicle and they returned back quietly without reacting.
14. ' In view of what has been discussed above, I am of the considered view that there is substance in the averments made by the petitioner in her petition which can, only, be explored by recording evidence of the witnesses under sections 161 and 164, Cr.P.C. Produced on behalf of the petitioner, after registering the First Information Report, being the fundamental right of a citizen of this Islamic Republic Country, and therefore, am inclined to allow this petition and direct respondent No,6 to make arrangement for recording statement of the petitioner and if any cognizable offence is made out from such statement also make 'arrangement for registration of F.I.R. Against respondents Nos.1 to 5 as four of them being police officials may influence and cause impediments for registering the same.
15. ' Constitutional Petition No,260 of 2002 stands disposed of in the above terms.