' By this order I proposed to dispose of Criminal Miscellaneous Application No,25 of 1993 which has been filed by the complainant Muhammad Boota for cancellation of bail granted to the respondents by the learned 1st Additional Sessions Judge, Tharparkur at Mirpurkhas in Sessions Case No,133/92, Crime No,42 of 1992 registered at Police Station Km Ghulam Muhammad District Mirpurkhas, under sections 302.
326. 325.
147. 148 and 149, P.P.C.
2. The brief facts of the case are that on 30-6-1992 at about 11-30 a.m. Respondents alongwith two absconders accused Ahsanullah and Ahsan-ul-Haq alongwith their family folk armed with hatchet came to the house of the complainant and attacked the complainant/applicant his son Ghulam Mustafa, his relative Mushtaque and other members of the family of the complainant in village Nihalo-ji-Hatti, Taluka Kot Ghulam Muhammad. According. To the case of the prosecution, respondents Muhammad Akinal and Allah Ditta inflicted hatchet blows on the head and other parts of the body of Ghulam Mustafa and murdered him. The complainant, Mushtaque and other members of the family of the complainant were also given hatchet blows by the other respondents as a result whereof the complainant and aforesaid other persons suffered grievous injuries.
Ghulam Mustafa was taken to Taluka Hospital whereafter F.I.R. Was lodged by the complainant at Police Station Kot Ghulam Muhammad at about 2-30 p.m. On account of precarious condition of Ghulam Muhammad he was rushed to L.M.C. Hospital Hyderabad where he succumbed to his injuries. After usual investigation police submitted challan against the respondents and others. An application for grant of bail was moved by the respondent before the trial Court which was allowed and the respondents vide order. Dated 16-11-1992 were enlarged on bail by the trial Court. It is this order which has been challenged by the applicant/complainant by way of this criminal miscellaneous application and cancellation of bail of the respondents has been sought.
3. I have heard Mr. Abdul Jabbar learned counsel for the applicant,. Mr. Syed Madad Ali Shah learned counsel for the respondents as well as Mr. Agha Khuda Bux Khan, Advocate for the State, who has appeared on Court notice.
4. It has been urged by the learned counsel for the applicant/ complainant that bail to the respondents has been granted by the trial Court on the ground that the case of the respondents requires further enquiry. Contentions of the learned counsel for the applicant is that such ground for grant of bail to an accused can only be taken into consideration by Court after examining as to whether reasonable grounds for grant of bail exists. Further contention of the learned counsel for the applicant is that learned trial Court while granting bail to the respondents did not apply its mind to the facts of the case and it has been, in the circumstances, urged by the learned counsel for the applicant that the order of grant of bail passed by the trial Court is not sustainable in law.
The learned counsel for the applicant in support of his contention has relied upon two judgments reported in 1992 SCMR page 501 and PLD 1984 SC page 56.
5. On the other hand, Mr. Syed Madad Ali Shah learned counsel for the respondents as contended that counter-cases in respect of one and the same incident have been registered by the complainant and accused party with the police and admittedly F.I.R. No,41 of 1992 lodged by respondent No,1 is earlier in time. There are injuries sustained by persons of both the sides and as to who is the aggressor can only be determined at the trial. The case against the respondents has already set down for trial and at this stage it would be improper to cancel bail granted to the respondents. Further contentions of the learned counsel for the respondents is that the respondents were granted bail by the learned trial Court on 16-11-1992 and admittedly the respondents have not misused the concession of bail. The learned counsel for the respondents has relied upon a number of reported judgments in support of his contentions including the following cases:--
(1) 1996 SCMR 1845; (2) NLR 1997 Criminal 246; (3) 1997 SCMR 251; (4) 1992 SCMR, 1418; (5) 1998 SCMR 1129; (6) PLD 1989 SC 347, (7) PLD 1989 SC 585 and (8) PLD 1996 SC 241.
6. Mr. Agha Khuda Bux Khan learned counsel for the State has supported the contentions raised by the learned counsel for the respondents and has stated that the order of grant of bail passed by/he trial Court is well-reasoned and does not call for any interference by this Court.
7. I have carefully considered the arguments advanced by the learned counsel for the parties and have perused the record. There is no force in the contentions of learned counsel for the applicant that the respondents have been admitted to bail on the ground that the case of the respondents is that of further enquiry. A perusal of the order by which the bail was granted to the respondents reveals that the factor which weighed with the learned trial Court for the grant of bail to the respondents is that there are counter-versions of the incident and as to who is the aggressor can only be determined at the trial. Furthermore, consideration in grant of bail to the accused are altogether different than in a case where cancellation of bail is sought by the complainant. In my opinion unless exceptionally strong grounds such as abuse/misuse of concession of bail exist for cancellation of bail the High Court does not interfere with the order of grant of bail passed by the trial Court. In the instant case the respondents are availing the concession of bail right from November, 1992 and there is no allegation against the respondents in respect of misuse of concession of bail. Furthermore, there is strong force in the contentions of learned counsel for the respondents that there being counter-versions of the incident, the question as 'to which of the two parties is aggressor can only be considered after evidence is recorded and as such the respondents have been rightly enlarged on bail by the trial Court.
8. The case-law cited by the learned counsel for the applicant is distinguishable inasmuch as observation of the Honourable Court in the two cited cases have been made in a case for grant of bail whereas in the instant case I am dealing with the matter where cancellation of bail has been sought by the applicant. The case-law cited by the learned counsel for the respondents supports the case of the respondents for non-cancellation of bail to the hilt.
9. In view of the above discussion I have no hesitation to hold that the application for cancellation of bail filed by the complainant Muhammad Boota is without substance and as such the same is dismissed.
10. Above are my reasons for the short order of rejection of this criminal miscellaneous application which was passed by me on 3rd March, 1998.
2004 P Cr. L.J 1451 [Lahore] Before Bashir A. Mujalzid, J Mst. RABIA BIBI---Petitioner versus THE STATE---Respondent Crl. Misc. No,2554/B of 2004, decided on 26th April, 2004.
Criminal Procedure Code (V of 1898)--- ----Ss. 497 & 561-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)--- Constitution of Pakistan (1973), Art.14---Bail application converted into quashment petition---F.I.R.
Revealed that complainant, and two other persons at midnight peeped through the window of the "Baithak" of co-accused and saw in the light of electric bulb the accused and her co-accused busy in committing Zinabil-Raza with each other---Contents of the F.I.R. Were in violation of the fundamental rights as guaranteed under Art.14 of the Constitution which provided protection of privacy and inviolability of a person and intrusion in anyone's house in order to find out commission of an act/crime which was in violations. Of Injunctions of. Islam---Conduct of the complainant was violative of Art.14(1) of the Constitution and if the F.I.R: remained in the field proceedings in pursuance thereof would amount to sheer wastage of time and abuse of the process of the Court---F.I.R. Was quashed by High Court in circumstances in exercise of. Its inherent jurisdiction. [pp. 1452, 1455] A, B, C & D Riaz v. Station House Officer PLD 1998 Lah. 35; Muhammad Bilal v. Superintendent of Police PLD 1999 Lah. 297; Ghulam Sakina v. State 1991 PCr.LJ 568; Translation of Surah An-Nur Versus 27 and 28 by Abdullah Yousif Ali; Surah Al-Hujrat and Abdul Qayum v. The State 1991 PSC 820 ref. Miss Nosheen Taskeen for Petitioner.
Najeeb Faisal Chaudhary, Addl. A.-G. And Rana Javed Anwar Khan for the State.
Fazal Ali complainant in person with Muhammad Jamil S.-I.
' During my inspection of the judicial Hawalat Chicha Watni, Sub-Division District Sahiwal it came to my notice that Rabia Bibi young teenager girl had been arrested in case F.I.R. No,88, dated 21-3- 2004 under section 10(2) of Offence of Zina (Enforcement of Hudood)' Ordinance, 1979 registered with Police Station Saddar Chichawatni.
2. After perusal of the F.I.R., it was found that case was got registered by one Fazal Ali with the allegation that at about 1-30 a.m. During the night between 20/21 March, 2004 he was going on the road in front of Baithak of Kashif, he overheard voice from inside, on which he called Abdul Rauf and Nadeem Raza and they peeped through the window and saw in the light of electric bulb that Kashif and Rabia were busy in committing Zina-bil-Raza with each other. They got the door opened. They took both into their custody and in the morning they produced them before Muhammad Jamil. S.-I. Who recorded the instant F.I.R.
3. On finding the contents of the F.I.R. In violation of fundamental rights as guaranteed under Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973 which provides protection of privacy and inviolability of man and intrusion in any one's house in order to find out commission of act/crime which is in violation of Injunctions of Islam, I observed that this F.I.R. Is liable to be quashed and directed the learned ASJ Chichawatni to admit the accused to bail. Resultantly the accused was allowed bail by the learned ASJ, Chichawatni vide order, dated 3-4-2004. By seeking support of Riaz v. Station House Officer PLD 1998 Lah.35 and Muhammad Bilal v. Superintendent of Police PLD 1999 Lah. 297, I summoned the record from the trial Court which has been produced before me by Muhammad Jarneel Ahmad, S.-I. On 6-4-2004.
4. As the case pertains to District Sahiwal which fall under the territorial jurisdiction of Multan Bench, therefore, matter was placed before the Honourable Chief Justice soliciting necessary orders and the Honourable Chief Justice has fixed this petition before me..
5. Miss Nosheen Taskeen, Advocate was appointed as amicus curiae at the State expense to assist this Court on behalf of the petitioner and in response to the notice issued to the complainant he is also present with the learned Law Officer.
6. The facts of the case are narrated by me in para.2 and learned counsel for the petitioner has argued that the conduct of the complainant I is violative of Article 14(1) of Constitution of Islamic Republic of Pakistan which reads as under:-- "The dignity of man and, subject to law, the privacy of home. Shall he inviolable." ' and has placed reliance on Riaz v. S.H.O. Police Station Jhang City and 2 others PLD 1998 Lah. 35, wherein in para. 20, it has been held that--- "in short, for the purposes of this law and implementation of its provisions no room has been made for house search. The Federal Shariat Court has emphatically observed that the charges of Zina should not be casually brought to Court or publicized as it shatters the foundation of the family where female is accused in such a crime. It has been further held that "human weakness should rather be overlooked and ignored, unless committed at public place and becomes a cause of concern from the societies point of law. (Ghulam Sakina v. State 1991 PCr.LJ 568).
' In para. 25, it was also held that --- no provision in the Offence of Zina (Enforcement of Hudood)
Ordinance No,VII of 1979 unlike some other special laws which permit the conduct of a raid in a house for the purpose of discovering and unearthing the commission of Zina therein. This Ordinance was enacted to implement the Islamic provisions in this behalf and rightly does not provide for an intrusion into anyone's house only to find out the commission of offence of Zina. In fact the Holy Qur'an prohibits such an act. He cited Abdullah Yousif Ali's translation Surah An-Nur Verses 27 and 28. Which ordain:-- "27. 0 ye who believe: Enter not, houses 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."
' He further referred to Allama Yousuf Ali's own comments upon the Islamic concept of privacy of home. As compared to the Englishman's concept of exclusiveness, which is reflected in the old saying that an Englishman's home is his castle, is distinguishable inasmuch as it reflects privacy without exclusiveness and friendliness without undue familiarity. The concept of Purdah is inherent in the concept of privacy of home.
' Similar injunction is provided in Surah Al-Hujrat:{{URDU TEXT}}
8. In view of the above, although it was registered as bail petition, but I feel that it will sheer wastage of time and abuse of process of Court of law if the F.I.R. Remains in field, therefore, I allow this petition and order for quashment of case F.I.R. No.88, dated 21-3-2004 under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Saddar, Chichawatni, in exercise of inherent jurisdiction.
F . I . R . Quashed.