2010 P Cr.

L J 2 3 1

[Federal, Shariat Court]

Before Syed Afzal Haider, J

Mst. SHEHNAZ alias ASMA alias RANI and another----Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.142/L of 2005, decided on 14th November, 2008.

(a) Offence of Zina (Enforcement of Hudood) Ordinance ( V I I of 1979)---

----S. 10(2)-Criminal Procedure Code (V of 1898), S.96---Appreciation of evidence---

Search warrant---Application for---On receiving spy information with regard to
running a brothel house by accused, complainant/Police Officer moved application to
Illaqa Magistrate for issuance of search warrant---In said application neither the house
required to be searched was identified nor was the informer produced before the
Magistrate---On said application Magistrate passed order for, search warrant, but said
order did not bear the seal of the court and search warrant was not issued in the
prescribed form fulfilling the necessary conditions---Short order of the Magistrate did
not show that there was material of any sort before him to make him believe that he
must issue warrant---Magistrate did not realize that the issuance of a search warrant
was a judicial act and the words `reason to believe' occurring in S.96, Cr.P.C.,
signified that there must be in existence justifiable grounds for the court to form that
opinion which could be covered by the term "reason to believe "---As a consequence
of the issuance of a search warrant, the Police Inspector raided the house without
seeking permission and invaded the privacy of the house, guaranteed by the
Constitution, without associating any respectable from the locality and started
investigation without formally recording a crime report---Magistrate allowed
application of Police Officer subject to the authenticity of the informer, which meant
that Magistrate left it to the discretion of the Police Officer---Magistrate abjured his
duty in favour of discretion of a Police Officer, which was certainly contrary to law---
Investigation in the case, was defective---Main accused and his associates who,
according to complainant/Police Officer, were controlling the brothel house had been
acquitted as no evidence was on record to support their conviction---Alleged crime
spot was reported to be in a village, but it was not possible to believe that the business
of prostitution as recorded in F.I.R., was rampant and the neighbourhood in great
agony, but none from the neighbourhood appeared either to witness a raid or to
authenticate the element of recovery or to confirm the secret report the informer---
Prosecution witness who was a journalist was a stock Police witness---Conviction and
sentence r e c o r d e d by the Trial Court against accused under S.10(2) of Offence of
Zina (Enforcement of Hudood) Ordinance, 1979, could not be sustained, in
circumstances.

Niamat Chacha Kata v. Summary Military Court No.2, Lahore PLD 1979 Lah. 279;
Ghulam Muhammad alias Gama v. The State PLD 1981 FSC 120; Arshad Zubair v.
The State 1993 SCMR 2059; Riaz v. Station House Officer PLD 1998 Lah. 35; Abdul
Majeed v. Superintendent of Police PLJ 1998 Lah. 1158 and Nasreen v. Station House
Officer 2001 PCr.LJ 685 rel.

(b) Islamic jurisprudence---

----Sanctity of the privacy of home or sanctity of "Chaddar and Chardevari,

explained---Principles.

(c) Criminal Procedure Code (V of 1898)---

----S. 154---First Information Report---Object and purpose---Statutory duty was cast

upon the officer of a Police Station to enter every information regarding the
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commission of a cognizable offence in a book maintained by such officer in the
prescribed form---Such step, in ordinary parlance, was called the registration of First
Information Report---Police Officer could not delay the recording of the F.I.R., once
information regarding the commission of a cognizable offence had been given---
Violation of that mandatory and pre-emptory duty was an aberration in Police
discipline---Such a deviation in Police vocabulary was called `Barking' which was
punishable under Police Act and Police Rules---Use of word `shall' in S.154, Cr.P.C.
indicated that it did not give discretionary power to the Police Officer to delay or
refuse registration---Police Officer had no other option, but to proceed with
registration of crime report without any delay---Aggrieved person had a right that his
complaint about the commission of a cognizable offence, would be registered in the
Police Station as a preliminary step before investigation was undertaken---
Registration of First Information Report was a condition precedent to the launching of
the investigation---Such a measure, would rule out the possibility of deliberation,
consultation and enquiry before furnishing the information---Element of delay in
lodging the crime report was to be-treated with caution because there was a tendency
to involve innocent people during interval---Longer the intermission, the greater were
the chances of false implication--Investigation that followed the registration of a
crime, had more value than the -investigation which would precede registration of
F.I.R.---Ordinarily there could be no investigation in a cognizable case without first
registering the crime report---Having registered the case, the Police Officer could
proceed with the investigation without a formal permission from the court which had
the territorial jurisdiction to try that case.

M. Bashir Sehgal and others v. The State and others PLD 1964 Lah. 148; Rehman and
others v. The State PLD 1968 Lah. 464; Shaman v. The State 1972 PCr.LJ 400;
Hazoor Bakhsh v. Senior Superintendent of Police PLD 1999 Lah. 417; Saeed Ahmad
v. Naseer Ahmad PLD 2000 Lah.208 and Mumtaz Hussain v. Deputy Inspector
General PLD 2002 Lah. 78 ref.

(d) Criminal Procedure Code (V of 1898)---

----S. 154---First Information Report---Principles---Investigation--Irregularity or

illegality in investigation by the Police---Aggrieved person had a right to report the
matter to the Officer Incharge of a Police Station in order to set the process of law in
motion---Police Officer was bound to reduce in writing said report---After having done
that, Police Officer was empowered to initiate investigation into the correctness or
otherwise of the complaint---Irregularity or illegality in the investigation by the Police,
though would not vitiate the trial, but there was no bar for the court to refuse to
acknowledge the result of conduct of Police Officer in utter violation of mandatory
provisions of S.154, Cr.P.C.---Unnecessary haste on the part of the Police Officer to
initiate investigation by visiting the place of occurrence on a secret information and
opting to become an eye-witness; and then after initiating investigation himself becoming
a complainant as well and getting a crime report registered, was certainly an action
contrary to law and good conduct, which was liable to be ignored.

(e) Criminal Procedure Code (V o f 1898)---

----Ss. 154 & 156---Information and investigation into cognizable case---Section 154,
Cr.P.C. and S.156, Cr.P.C.-Distinction-Section 156, Cr.P.C. authorized an Officer
Incharge of a Police Station to investigate any cognizable case within the jurisdiction of
the Police Station without the order of a Magistrate; and such proceedings would not be
called in question on the ground that the case was one which such officer was not
empowered to investigate---Main difference between S.154, Cr.P.C. and S.156, Cr.P.C.
was that S.154, Cr.P.C. would grant right to the aggrieved person to set the law in motion
and empowered the Police Officer Incharge of the Police Station to formally reduce into
writing the crime report on the complaint of the aggrieved person, that step having been
taken, the Police was authorized to initiate investigation by visiting the spot, collecting
evidence and effecting arrest of suspect offenders without the intervention of judicial
order from the Magistrate---Such was what S.156, Cr.P.C. visualized.

(f) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

Page No. 2 of 14
----S. 10(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.22---Issue of
search warrant---Under Art.22 of Prohibition (Enforcement of Hadd) Order, 1979 if any
Collector, Prohibition Officer or a Magistrate upon information obtained and after
enquiry would think necessary, could issue warrant for the search, but no corresponding
provision existed in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979
which would authorize a Magistrate to issue search warrant; or authorize a Police Officer
to enter the house upon information, that illegal sex was being committed---Offence of
Zina (Enforcement of Hudood) Ordinance, 1979, did not contemplate creating evidence
to convert a sex sin, being committed in the four walls of a house, into an offence
punishable under said Ordinance.

(g) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 7 & 8---Punishment for offence of Zina---Spirit of enacting S.8 of the Offence of
Zina (Enforcement of Hudood) Ordinance, 1979 was to punish such offences which had
been witnessed by at least four Muslims, adult and male eye-witnesses---Even in Tazir
where the requirement of four witnesses was not essential, the direct evidence must be of
a person who was a material witness; and not one who hunted sinner and then took pride
in becoming a witness for the prosecution---Such a conduct was violative of the
Injunctions of Islam which encouraged covering the sins of others.

(h) Criminal Procedure Code (V of 1898)---

----Ss. 156 & 157---Investigation into cognizable cases---Procedure where cognizable

offence suspected---Provisions of the Code of Criminal Procedure, would apply mutatis
matandis in respect of cases under the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979---Section 157, Cr.P.C., however, authorized an Officer Incharge of a
Police Station to investigate the facts and circumstances of the case; and if necessary
could take measures for the discovery and arrest of the offender, if from information
received, said officer had reason to suspect the commission of an offence, which he was
empowered under S.156, Cr.P.C. to investigate; but even said section did not permit a
Police Officer to enter the house and violate the privacy of the citizen.

Muhammad Aqil v. The State 1996 PCr.LJ 345 ref.

(i) Criminal Procedure Code (V of 1898)---

---Ss.75 & 555---Qanun-e-Shahadat (10 of 1984), Arts.88 & 112---Search warrant---No

search warrant in the form set forth in the Fifth Schedule of Cr.P.C. as mandated by
S.555, Cr.P.C., bearing the seal of the court as visualized by S.75 of Cr.P.C., was available
on the record---Warrant was a public document and could have been proved by
production of a certified copy as visualized by Art.88 of the Qanun-e-Shahadat, 1984---
Only document on record, in the present case, was an application moved by the
complainant requesting for issuance of a search warrant; which application was allowed
by the Magistrate---Record failed to establish that a consequence of the order allowing
the application conditionally, any search warrant, in accordance with the form
prescribed in Schedule V of Cr.P.C. was issued directing the Police Inspector to perform
a particular duty---No seal was affixed on the said application---Inference, however,
could be drawn that the Police Officer wanted permission to effect arrest of a number of
persons in a house where the offence was alleged being committed---General warrant to
apprehend more than one person was, however neither authorized by Cr.P.C. nor by
Offence of Zina (Enforcement of Hudood) Ordinance, 1979---All proceedings as a
subsequent to submission of application were thus, void under clause (d) of sub Article
(i) of Art.112 of the Qanun-e-Shahadat, 1984, the court was authorized to take judicial
notice of "the seal of all the courts".

(j) Interpretation of statutes---

----Laws were subservient to Constitution and where the Constitution declared a right to
be subject to law, it would not mean that the guarantee of the right had been taken
away; in such an event the law must be followed strictly so that the guaranteed rights
were duly honoured.

Page No. 3 of 14
Abdul Hameed Khan Baloch for Appellants.

Raja Shahid Mahmood Abbasi, D.P.-G. for the State.

Date of hearing: 14th November, 2008.

JUDGMENT

SYED AFZAL HAIDER, J.---

Introduction

Mst. Shahnaz alias Asma alias Rani and Mst. Naila alias Shamim have through this
appeal challenged the judgment dated 28-4-2005 delivered by learned Additional
Sessions Judge, Dera Ghazi Khan whereby both the appellants were convicted under
section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)
and sentenced to five years rigorous imprisonment each with a fine of Rs.10,000 each and
in default whereof to further suffer three months simple imprisonment each. Benefit of
section 382=B of the Code of Criminal Procedure was granted to the appellants.

2. Both the appellants were admitted to bail by this Court on 6-5-2005. On' 24-10-2008
the husband of appellant Mst. Naila informed the Court that his wife, had expired on 30-
9-2006. Death certificate of Mst. Naila, as directed, was placed on record and it was
ordered that the appeal in so far as appellant Mst. Naila was concerned, had abated on
account of her death. This judgment will, therefore, decide the appeal of Mst. Shahnaz
alias Asma alias Rani.

3. Facts leading upto the trial of the appellant have been stated in the crime report F.I.R.
No.33 of 2001, Exh.P.G./1 registered on 25-1-2001 with Police Station Kot Chutta on the
basis of a "Murasala" (written intimation) of P.W.7 Ijaz Hussain Bukhari Inspector, who
is the complainant in this case. He is also the Investigating Officer and the person who
conducted a raid in the house.

Prosecution story

4. According to the complainant Ijaz Hussain Bukhari Inspector P.W.7, he was present at
Chowk Saleemabad along with other police officers when he received "spy information"
to the effect that one Fida Hussain was running a prostitution den at his Dera at his well
Muraley Wala in village Ghousabad and further that at that time many men and women
were involved in committing Zina. It was also conveyed that Fida Hussain, in exchange
for money, was indulging in the prohibited activity and if a raid was conducted the
culprits could be arrested red-handed. On receipt of the said information, the police party
raided the said house after the complainant submitted an application before the Illaqa
Magistrate to seek permission for issuance of search warrant. It is further stated that
having secured ingress in the premises, the police party found accused Zulfiqar (since
proclaimed offender) and Mst. Naila (the dead appellant) in room No.1 and Muhammad
Akram and Mst. Shahnaz (appellant) in room No.2, committing Zina whereas accused
Fida Hussain, Ubaid Ullah Farooq, Sohanra, Mst. Nasim and Mst. Lubna, present in the
courtyard of the house, were wrangling over payment of money. An amount of Rs.500
was recovered from accused Fida Hussain, whereas Rs.250 were recovered from accused
Mst. Nasim and a sum of Rs.200 was recovered from accused Mst. Lubna, yet another
amount of Rs.200 was recovered from accused Mst. Naila while Rs.150 were recovered
from accused Mst. Shahnaz. The recovered currency notes were taken into possession
through different memos by the police. The accused were arrested on the spot and the
Inspector then sent the "Murasla" for registration of crime report.

5. After completion of investigation the Station House Officer submitted report under
section 173 of the Code of Criminal Procedure requiring the accused to face trial. The
learned trial Court framed charges under sections 13, 14 and 10(2) of the Offence of Zina
(Enforcement of Hudood) Ordinance VII of 1979) against nine accused, on 9-2-2004.
They did not plead guilty and claimed trial.

Prosecution evidence
Page No. 4 of 14
6. The prosecution in order to prove its case produced seven witnesses at the trial.
Summary of the evidence is as follows:---

(i) Lady Dr. Fatima Sherin appeared as P.W.1 and stated that she examined Mst.
Naila alias Shamim, Mst. Lubna Kanwal, Mst. Nasim wife of Rafique, 'and Mst.
Asma alias Rani and gave detailed medical reports of the four female accused.
She further stated that vaginal swabs were taken and handed over to police for
onward transmission to the Chemical Examiner. According to the report of the
Chemical Examiner, the vaginal swabs of Mst. Lubna, Mst. Asma and Mst. Naila
alias Shamim (since dead) were stained with semen.

(ii) P.W.2 Dr. Abdul Rehman, medically examined Muhammad Akram and Fida
Hussain to ascertain their potency and found them fit to perform sexual act.

(iii) P.W.3 Fayyaz Ahmad, Head Moharrar drafted F.I.R. Exh.P.G./1 on receipt of
"Murasala", Exh.P.G, written and sent by Ijaz Hussain Bukhari, Station House
Officer P.W.7.

(iv) Muhammad Ajmal appeared as P.W.4 and deposed that at the time when spy
information was conveyed to the Inspector and other police officials, he was
present at Chowk Saleemabad. He also witnessed recoveries made by the police
from the place of occurrence.

(v) Sana Ullah Khan, Inspector P.W.5 was member of the raiding party. He
supported the version of the complainant P.W.7. He admitted that no respectable
person of the locality was associated at the time of raid at the place of
occurrence.

(vi) P.W.6 Lady. Constable Shazia Tabassum, conducted personal search of the
female accused after she had joined the investigation at Ghousabad. The cash
recovered from the female accused was handed to Investigating Officer P.W.7.
She testified four recovery memos.

(vii) P.W.7 Inspector Ijaz Hussain Bukhari, the Investigating Officer, is also the
complainant. His statement has already been mentioned above.

The trial

7. The learned trial Court, after the prosecution had closed its evidence, recorded
statements of the accused under section 342 of the Code of Criminal Procedure. The
accused neither made statements on oath under section 340(2) of the Code of Criminal
Procedure nor produced any evidence in their defence. The relevant portions of the
statements of the accused are as follows:---

(a) Fida Hussain accused stated that "P.W. Muhammad Ajmal is a so-called
journalist and black mailer. A dispute of land is going on between me and said
P.W. On the day of occurrence when I along with other relatives were going to
Jampur to participate in a marriage ceremony and when we reached at Kot Chutta,
the said P.W. along with the local police came on a Dala and said the police to
apprehend me. On hue and cry of my other relatives, the police also apprehended
all my relatives and me and confined us at Police Station and they demanded
illegal gratification from us. On our refusal, the police involved me and my other
relatives in. this false case. All the P.Ws. are police officials, therefore, they
deposed against me to strengthen the prosecution case."

(b) Ubaid Ullah Farooq accused stated that "I am a lessee (Mutadar) of accused
Fida Hussain. P.W. Muhammad Ajmal has some dispute with Fida Hussain
accused about the land, who got involved said Fida Hussain in this case due to
that grudge when he was going to Jampur for participating in a marriage
ceremony and the police implicated me in this case due to lessor of said Fida
Hussain accused mala fide and falsely. All the P.Ws. are police officials, therefore,
they deposed against me to strengthen the prosecution case."
Page No. 5 of 14
 (c) Sohanra accused stated that "I am a personal servant of accused Fida Hussain.
The police involved me in this case falsely due to servant of accused Fida
Hussain, who was falsely implicated in this case when he along with other co-
accused were going to Jampur for participating in a marriage ceremony. All the
P.Ws. are police officials, therefore, they deposed against me."

(d) Shahnaz alias Asma alias Rani accused stated that "I am wife of accused
Ubaid Ullah Farooq who was falsely involved in this case due to lessee of accused
Fida Hussain. Being wife of accused Ubaid Ullah Farooq I was also implicated.in
this case mala fide by the local police. All the P.Ws. are police officials, therefore,
they deposed against me to strengthen the prosecution case."

(e) Naila alias Shamim accused stated that "Mst. Nasim Mai accused is my real
mother. I am married and I have two suckling daughters. Mst. Lubna and Fida
Hussain are my maternal cousins. Sonhara accused is servant of Fida Hussain and
Muhammad Akram is neighbourer of accused Fida Hussain. P.W. Muhammad
Ajmal is a so-called journalist and black mailer, whose dispute of a land was
going on with accused Fida Hussain. One day prior to the alleged occurrence,
when I along with other accused except Zulfiqar reached at Kot Chutta for
participating in a marriage ceremony at Jampur, suddenly P.W. Muhammad Ajmal
came there on a Dala along with local police. On alighting from a Dala, he said to
apprehend Fida Hussain. We raised hue and cry, upon which Muhammad Ajmal
said to arrest all of us. Police illegally confined me along with other accused and
meanwhile, they had been demanding illegal gratification. On our refusal, they
registered a false and fabricated case. All the P.Ws. are police officials, therefore,
they deposed against me to strengthen the prosecution case."

(f) Relevant portion of even the acquitted accused have been mentioned above to
show unanimity of approach. Each one of them has explained the reason why a
false crime report had been registered.

8. The learned trial Court in the end came to the conclusion that the prosecution failed to
prove its case against the other five co-accused namely Fida Hussain, Sonhara, Ubaid
Ullah Farooq, Mst. Lubna and Mst. Nasim and they were consequently acquitted of the
charges under sections 13/14 of Offence of Zina (Enforcement of Hudood) Ordinance,
VII of 1979 while the appellants Mst. Shahnaz and Mst. Naila were convicted and
sentenced under section 10(2) of the said Ordinance as mentioned in the opening para. of
this judgment. Two accused namely Muhammad Akram and Zulfiqar had absconded and
were declared proclaimed offenders. Hence the present appeal.

9. I have heard arguments advanced by learned counsel for the appellant as well as
learned D.P.-G. for the State:---

(i) Learned counsel for the appellant submits that a false case was registered
against the accused persons and a paltry sum amounting to Rs.1,150 was allegedly
recovered from five accused which in no way .established the commission of
offence charged.

(ii) He also contended that five accused were acquitted but the appellant was
convicted on the same set of evidence.

(iii) It was further contended that P.W.4 stated that "he did not witness the said
accused committing Zina." This statement on the part of a member of raiding
party demolishes the case of prosecution.

(iv2) P. W.5 Sana Ullah Khan Inspector Police has also admitted that at the time
of raid the outer door of the house was open and "the doors of the room were not
bolted from inside but they were shut." He also admitted that "no respectable
person from the locality joined us at the time of raid at the place of occurrence."
The Inspector police also stated that rupees five hundred were recovered from
Fida Hussain, acquitted accused and no money was recovered from any other
accused. This portion of the statement demolishes the very story of recovery of
Page No. 6 of 14
 cash from accused other than Fida Hussain.

(v) That Exh.P.C. is the report of the Chemical Examiner which states that one
Ghulam Haider 266/C delivered on 14-2-2001 the packet sent by W.M.O. but
Ghulam Haider Constable did not appear in the witness box to depose that on a
given date he received the parcel from the Incharge of Malkhana and then
delivered the packet intact to the Chemical Examiner.

10. Learned counsel, on behalf of the State, supports the conviction and sentence
recorded by learned trial Court for the reasons that the appellant was caught red handed
as a consequence of a successful raid. He also contended that the evidence of prosecution
witnesses was corroborated by medical evidence.

The main issue.

11. The basic question in this case is whether human dignity and the privacy of home,
declared by the Constitution of Islamic Republic of Pakistan as inviolable, can be
infracted by a police officer in utter violation of the provisions contained in the Code of
Criminal Procedure.

12.. It is on record that P.W.7 on 25-1-2001 was present at Chowk Saleemabad when he
received spy information that one Fida Hussain was running a brothel house at
Ghousabad and that "many men and women were present there for the purpose of
committing Zina and accused Fida Hussain allows them to commit Zina after receiving
money from them". On receipt of the said information he proceeded for procuring search
warrant and moved an application Exh.P.N., addressed to the Illaqa Magistrate, praying
for the issuance of search warrant: In this application, the house to be searched was not
identified. This application was made on 25-1-2001 and the learned Illaqa Magistrate
passed the following order on the same day:---

"Allowed to enter and search the said premises subject to authenticity of

informer."

This order does not bear the seal of the Court. No search warrant as a consequence of
the search having been allowed, was issued in the prescribed form fulfilling the
necessary conditions.

13. Thereafter, the Inspector conducted a raid at the house of Fida Hussain (the
acquitted accused). He found that Fida Hussain, Mst. Nasim, Sohanra and Ubaidullah
were present in the courtyard whereas in room No.l Zulfiqar accused and Mst. Naila
and in room No.2 Muhammad Akram and Mst. Shahnaz, appellant were committing
Zina. Recoveries were effected and accused formally arrested.

14. That it was only then that P.W.7 after taking so many steps drafted complaint
Exh.P.G. and sent the same to Police Station through Muhammad Baqir Constable, for
registration of the crime report. The witness had the audacity to state, that it was after
sending the complaint to the police station for registration of case that lie started
investigation of the case. He also prepared rough site plan of the place of occurrence
and sent the female accused for medical examination.

15. It is evident from the application Exh.P.N. that neither the house required to be
searched was identified in this application .nor was the informer produced before the
learned Magistrate to help him from opinion on the basis of some material. The short
order of the Magistrate does not show that there was material of any sort before him
to make him believe that he must issue warrant because the person will not produce
the document or thing. The police Inspector neither made a request for the production
of a document nor of a thing. The application was for search of an unidentified house
where some persons were engaged in illicit sex. Production and arrest of human
beings cannot be equated with production of a document or a thing. Had a crime
report of a cognizable case been registered he could have investigated the case and
effected arrest of any person concerned in any cognizable offence or against whom
reasonable suspicion existed of his involvement in the offence. He could then be
satisfied that there were reasons to issue search warrants. He allowed the application
Page No. 7 of 14
subject to the authenticity of the informer which meant that he left it to the discretion
of the police officer. He abjured his duty in favour of discretion of a police officer
which was certainly contrary to law.

16. I have gone through the evidence. The file has been scanned. The entire case starts
with the spy information whereafter the Inspector presented an application Exh.P.N.,
before the learned Magistrate praying for the issuance of a search warrant which
request was allowed "subject to authenticity of informer". A raid was consequently
conducted in the house of Fida Hussain, the acquitted accused, and nine persons were
arrested. The points worthnoting are (a) the competency of learned Magistrate to issue
a search warrant when there is no provision in the Code of Criminal Procedure to pass
such an order merely on the information of a anonymous person conveyed through a
police officer that Zina was being committed at a particular place; and (b) the conduct
of police officer in clear defiance of the procedure and conduct prescribed by law.

17. I find the following defects in the entire process.

(a) Information conveyed to the Inspector Police by an informer, whose

identity no one knows;

(b) Submission by Inspector Police of an application to the learned Magistrate

for issuance of a search warrant on anonymous oral information without
placing material before the issuing authority.

(c) Due to the lack of identity of the informer, in case the information is found
to be wrong or motivated, he is saved from the legal consequences of setting
the law into motion on a false report.

(d) Allowing application without applying mind. No material was placed

before the learned Magistrate to apply his mind. He allowed the application
subject to authenticity of the informer meaning thereby that he delegated his
judicial discretion to the complainant police officer. There was even no
crime .report registered by then. Learned Magistrate did not realize that the
issuance of a search warrant is a judicial act and the word "reason to believe"
occurring in section 96 of the Code of Criminal Procedure signify that there
must be in existence justifiable grounds for the Court to form that opinion
which may be covered by the term "reason to believe". The time honoured
principle still holds the field that when law requires a thing to be done in a
particular way then it must be done in that way or not at all. All the other
methods are automatically excluded.

(e) As a consequence of the issuance of a search warrant the Inspector raided

the house without seeking permission and invaded the privacy of the house,
guaranteed by the Constitution, without associating any respectable from the
locality and started investigation without formally recording a crime report.

18. Since the issue under consideration is relatable to the fundamental rights, as
guaranteed by the Constitution, so it would be useful to refer to various authorities to
ascertain whether uncontrolled powers are available with police officers to violate
privacy of home notwithstanding constitutional guarantee proclaimed in Article 14 of the
Constitution. The matter involves human freedoms and we have also to see to what
extent God Almighty assures human freedom and provides protection to good as well as
sinning human beings.

(a) In the case of Niamat Chacha Kata v. Summary Military Court No.2, Lahore
reported as PLD 1979 Lah. 279, it was held that where the provisions of section
103 of the Code of Criminal Procedure are deliberately violated and no
respectable person of the locality attended the search, the recoveries could not
be used against the petitioner.

(b) Ghulam Muhammad alias Gama v. The State reported as PLD 1981 FSC 120
(FB) is a case which interprets section 156 of the Code of Criminal Procedure
differently. The facts were that one I.B. aged 16/17 years had undergone Shighar
Page No. 8 of 14
 marriage i.e. the Wata or exchange marriage as her brother A.D. was married to
the sister of her husband A.D. After 3/4 months her relations with her husband got
strained. She returned to her parents house. Her brother A.D. put pressure on her
to return to her husband A.B. because A.D. wanted to save his own marriage as he
had won his wife in exchange for his sister. I.B. left her parents house and
boarded a train bound for Faisalabad where she met two women who in turn
handed her over to the G.M. and one M.M. G.M. kept her in detention and she
was compelled to lead immoral life. One night her cries attracted the
neighbours who reported the matter to local police that she was being illegally
detained. Police officer raided the house and recovered the girl and a crime report
was registered subsequently on her statement and then further investigation
ensued. It was under these circumstances when the girl was under illegal
detention, beaten and compelled to submit herself to forcible sexual intercourse
with several persons that the Honourable Judges held in that case that recording of
the first information report was not a condition precedent for holding
investigation by police.

(c) The facts in the case of Ghulam Muhammad alias Gama were quite different
from the facts which have culminated in the present criminal appeal. In the
instant appeal Fida. Hussain, who allegedly runs a brothel house, has been
acquitted along with four others of the charge under section 14 of Offence of Zina
(Enforcement of Hudood) Ordinance VII of 1979. Moreover, in the case of
Ghulam Muhammad the prosecutrix had been abducted, detained and forced to
become a sex worker. It was under these circumstances that the raid undertaken
by police officer was protected by the Court because the life and honour of a
person had to be saved. It was also held that police investigation can precede
registration of crime report and further that failure on part of police officer to
record grounds of his belief that it was necessary to make search, which being an
irregularity or illegality in the investigation, would not vitiate the trial. It is
understandable that where the life and honour of a human being is in jeopardy the
procedural formalities can be ignored. Laws are made for the benefit of human
beings and not vice versa.

(d) In the case of Arshad Zubair v. The State reported as 1993 SCMR 2059 it was
held that the officer making the search should 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 the officer may issue an order to them-or any of them
to do so.

(e) The Federal Shariat Court in the case of Ashiq Hussain v. The State reiterated
the age old principle that if a particular procedure for doing anything or for
taking any action is prescribed by law then it has to be strictly followed and
adhered to and the thing done or action taken has to be in accordance with the said
prescribed procedure otherwise the same would be a nullity in the eyes of law
being violative of the legal provision.

(f) In the case of Riaz v. Station House Officer reported as PLD 1998 Lah. 35, it
was held that lack of mention of reasons by Magistrate before issuance of
warrants would vitiate the order.

(g) In the case of Abdul Majeed v. Superintendent of Police reported as PLJ 1998
Lah. 1158 it was held that even under sections 47, 48 of the Code of Criminal
Procedure, which relates to the search by police to effect arrest of accused person,
the police officer has to seek permission to enter the house even though he is
carrying a search warrant.

(h) In the case of Nasreen v. Station House Officer reported as 2001 PCr.LJ 685
some guidelines were given for the Magistrates which have not been followed in
the case under consideration.

19. The present case is different, because there is neither any allegation of abduction
nor of rape or detention of a young woman nor did any neighbour come forward to
lodge a complaint before the police officer for release of an unfortunate girl under
Page No. 9 of 14
improper or illegal detention. The point in the present case is whether the
constitutional guarantee stipulated in Article 14 could be violated without recourse of
law. It is worthnoticing that Article 4 of the Constitution confers a right upon the
individuals to be dealt in accordance with law which is an inalienable right wherever
he may be. The concept of human dignity and privacy of home was initially made a
sacrosanct right only through Islamic Injunctions. These points, which will be
discussed shortly were not raised before the Full Bench in the case of Ghulam
Muhammad v. State and the two other Full Bench cases on which the Honourable
Judges of the Federal Shariat Court relied. The case of Ghulam Muhammad v. State is,
therefore, distinguishable as the facts were different.

20. Having stated the legal position in so far as the interpretation of various
provisions of the Code of Criminal Procedure are concerned I would advert to the
principle of sanctity of the privacy of home or what we in our society call the sanctity
of "Chaddar and Chardevari," as enunciated by the Injunctions of Islam.

(i) Chapter 24, Verse 27, Sura Nur of the Holy Qur'an mandates:--

O you believe! Do
not enter houses other
than your own houses
until you have asked
permission and saluted
their inmates; this is
better for you, that you
may be mindful.

The savage practice of entering the dwelling places of others has been strictly
prohibited. This verse brings into prominence the importance of domestic peace,
tranquility and security.

(ii) Chapter 49, verse 12, Sura Al-Hujurat of Holy Qur'an ordains as follows:

O you who believe!

avoid most of suspicion,
for surely suspicion in
some cases is a sin,
and do not spy nor let
some of you backbite
others. Does one
of you like to eat the
flesh of his dead
brother? But you
abhor it; and be
careful of (your duty
to) Allah, surely Allah
is Oft returning (to
mercy), Merciful.

Soliciting information secretly or forcing ingress into the abodes of others to

discover whether immoral acts are being committed is strictly prohibited by
Qura'nic Injunctions. The Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979, which deals with sexual offences, does not
contemplate apprehending sinners in the residential quarters. The Philosophy
behind the presence of four Muslim, adult male witnesses to give evidence as
eyewitnesses of the act of penetration, was to discourage bringing to light un-
witnessed acts of sexual intercourse.

(iii) The well known tradition of the Holy Prophet (p.b.u.h.) on this issue is
reported on the authority of Abu Huraira (R.A.) that if some one is peeping in
your dwelling without permission, and you throw a stone at him and hurt his
eye there is no blame on you. Another tradition to the same effect is the right
of a dweller to cause injury with impunity with a pointed weapon aimed at the
Page No. 10 of 14
 intruder.

(iv) The third source of inspiration is the conduct of the companions of the
Holy Prophet (p.b.u.h.) and in this respect the incident of Caliph Hazrat Umar
(R.A.) is often quoted when he during the routine nocturnal patrolling, heard a
woman singing in her house. The Caliph, the head of the government, scaled
the wall and saw her enjoying liquor. As the story goes, the inmate of the
house on the contrary charged the Caliph of violating three injunctions: (a)
spying, (b) entry in the house by scaling instead of coming from the front door
and (c) forcing entry in the house (of course without permission). The Caliph
did not take cognizance of the offence because the privacy of the house was
inviolable and the law protected it. The Caliph did not prosecute the culprit
either even though he was an eye witness because he was not a natural witness
and had witnessed the incident taking place in the house only after scaling the
wall which was not permissible. It is worthnoting that the inmate of the house was
not disturbing public peace.

21. Considering the phraseology used in section 154 of the Code of Criminal Procedure, I
am of the view that a statutory duty is cast upon .the officer incharge of a Police Station
to enter every information regarding the commission of a cognizable offence in a book
maintained by such officer in the form prescribed by the Provincial Government. This
step is, in ordinary parlance, called the registration of first information report. The police
officer, it appears, cannot delay the recording of an F.I.R. once information regarding the
commission of a cognizable offence has been given. It may also be pointed out that
violation of this mandatory and pre-emptory duty was always considered an aberration in
police discipline. Such a deviation in police vocabulary was called Burking which was
punishable under the Police Act read with Police Rules. The use of the word "shall" in
section 154 ibid indicates that it does not give discretionary powers to the police officer
to delay or refuse registration. He has no other option but to proceed with registration of
the crime report without any delay. It is the right of an aggrieved person that his
complaint about the commission of a cognizable offence shall be registered in the police
station as a preliminary step before investigation is undertaken.

22. In so far as section 156 of the Code of Criminal Procedure is concerned it authorizes
an officer incharge of a Police Station to investigate any cognizable case within the
jurisdiction of the Police Station without the order of a Magistrate and such proceedings
shall not be called in question on the ground that the case was one which such officer was
not empowered to investigate. The main difference between sections 154 and 156 of the
Code of Criminal Procedure is that former section grants (i) right to the aggrieved person
to set the law in motion and (ii) empowers the police officer incharge of the Police
Station to formally reduce into writing the crime report on the complaint of the aggrieved
person. This step having been taken the police officer is authorized to initiate
investigation by visiting the spot, collecting evidence and effecting arrest of suspect
offenders without the intervention of a judicial order from the Magistrate. This is what
section 156 of the Code of Criminal Procedure visualizes.

23. It is, therefore, clear that registration of crime report precedes initiation of
investigation. In other words registration of first information report is a condition
precedent to the launching of the investigation. Such a measure would rule out the
possibility of deliberation, consultation and enquiry before furnishing the information.
The element of delay in lodging the crime report is treated with caution because there is a
tendency to involve innocent people during the interval. The longer the intermission the
greater are the chances of false implication. Investigation that follows the registration of a
crime report has more value than the investigation which precedes registration of F.I.R. It,
therefore, means that ordinarily there can be no investigation in a cognizable case without
first registering the crime report. Having registered the case the police officer can proceed
with the investigation without' a formal permission from the Court which has the
territorial jurisdiction to try that case.

24. However, in the case of Ghulam Muhammad v. The State, mentioned above, the Full
Bench of the Federal Shariat Court relying upon the case of M. Bashir Sehgal and others
v. The State and others reported as PLD 1964 Lah. 148 and also the case of Rehman and
others v. The State reported as PLD 1968 Lah. 464, held that recording of the first
Page No. 11 of 14
information report was not a condition precedent for holding of investigation by the
police. The courts in the above-mentioned cases held that the fact that no F.I.R. was
made or was not proved at the trial would not vitiate the conviction. It was also held
that illegality or irregularity in the investigation of an offence does not vitiate the trial.
This dictum also finds mention in the case of Shaman v. The State reported as 1972
PCr.LJ 400, a case decided by a Division Bench of the Lahore High Court where the
objection was that the investigation in that case had not been conducted by a competent
police officer in, terms of section 156 of the Code of Criminal Procedure as the Assistant
Sub-Inspector was not the Station House Officer.

25. In the case of Hazoor Bakhsh v. Senior Superintendent of Police reported as PLD
1999 Lah. 417, a Division Bench of the Lahore High Court held that the provisions-of
section 154 of the Code of Criminal Procedure are pre-emptory as well as obligatory and
the Station House Officer has no option but to record the statement of the complainant in
the .relevant register when the same discloses the commission of a cognizable offence.

26. Similar view was expressed in the case of Saeed Ahmad v. Naseer Ahmad reported as
PLD 2000 Lah. 208, by a Division Bench of the Lahore High Court. It has been held that
reducing the information in writing by police officer at the instance of the informant
regarding the commission of a cognizable offence is imperative in law. The police officer
is under statutory obligation to enter it in the prescribed register. The report to be
registered should fulfil two conditions (a) it should be an information and (b) it should
disclose the commission of a cognizable offence.
27. In the case of Mumtaz Hussain v. Deputy Inspector-General reported as PLD 2002
Lah. 78, it was held that registration of a criminal case is an independent right of the
aggrieved person because the officer incharge of the Police Station is bound under section
154 of the Code of Criminal Procedure to record the report and then proceed with
investigation in accordance with law.

28. These are some of the cases in which the interpretation put on section 154 of Code of
Criminal Procedure is to the effect firstly that it is the right of an aggrieved person to
report the matter to the Officer Incharge of a Police Station in order to set the process of
law in motion and secondly, it is the bounden duty of the police officer to reduce in
writing the said report. After having done this the police officer is empowered to initiate
investigation in the correctness or otherwise of the complaint.

29. The views expressed in the last three cases mentioned above is, however, different
from the three Full Bench cases of the Federal Shariat Court and the Lahore High 'Court.
An analysis of the above-mentioned precedents shows that irregularity or illegality in the
investigation by the police would not vitiate the trial. However, there is no bar for the
Court to refuse to acknowledge the result of conduct of Police Officer in utter violation of
mandatory provisions of section 154 of the Code of Criminal Procedure. The unnecessary
haste on the part of the police officer to initiate investigation by visiting the place of
occurrence on a secret information and opting to become an eyewitness and then after
initiating investigation himself becoming a complainant as well and getting a crime report
registered is certainly an action contrary to law and good conduct and, therefore, liable to
be ignored to say the least. Such a course of action right a note of caution that the Court
should, under the circumstances, be careful in assessing the evidence because the police
officer has not only acted in violation of law but has also become a complainant; and
created evidence at the spot by supplying eye-witnesses from among his subordinates to
substantiate his own complaint.

30. It is worth mentioning that under Article 22 of the Prohibition (Enforcement of Hadd)
Order, 1979 provides that: "If any Collector, Prohibition Officer or a Magistrate upon
information obtained and after such enquiry as he thinks necessary, has reasons to believe
that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed he
may issue warrant for' the search for an intoxicant, material, still, utensil, implement or
apparatus in respect of which the alleged offence has been committed." But there is, no
corresponding provision in the Offence of Zina (Enforcement of Hudood) Ordinance VII
of 1979 which authorizes a Magistrate to issue search warrant or authorize a police
officer to enter the house upon information that illicit sex is being committed. Ordinance
does not contemplate creating evidence to convert a sex sin, being committed in the four
walls of a house, into an offence punishable under the Ordinance. The law does not
Page No. 12 of 14
authorize the police officer to chase the sinners.

31. The spirit of enacting section 8 of the Ordinance was to punish such offences which
have been witnessed by at least four Muslim, adult and male eyewitnesses. Even in Tazir
where the requirement of our witnesses is not essential the direct evidence must be of a
person who is a natural witness and not one who hunts the sinners and then takes pride in
becoming a witness for the prosecution. Such a conduct is violative of the Injunctions of
Islam which encourages covering the sins of others.

32. The provisions of the Code of Criminal Procedure apply mutatis mutandis in respect
of cases under this Ordinance. Section 157, however, authorizes an officer incharge of a
police station to investigate the facts and circumstances. of the case and if necessary take
measures for the discovery and arrest of the offender if from information received the
officer incharge of a Police Station has reason to suspect the commission of an offence
which he is empowered under section 156 of the Code of Criminal Procedure to
investigate. But even this section does not permit a police officer to enter the house and
violate the privacy of the citizens. At this stage reference be made to the case of
Muhammad Aqil v. The State, reported as 1996 PCr.LJ 345, where it has been held that
"the informer might have a few privileges to be enjoyed before the police but when it
comes to the infringement of the legal or vested right of a citizen, the law has to take its
own course. There is not a word on judicial record wherefrom one could infer that
Jehanzeb Assistant Sub-Inspector had collected such evidence giving strong presumption
of the commission of offence that he could take cognizance there and, then. On mere
information of an informer which is never recorded anywhere and which informer cannot
be subsequently proceeded against for giving false information, no police officer has the
authority to take cognizance of an offence even if cognizable and to violate the privacy of
a citizen by entering into his house and by not giving any notice to the female inmates of
the house."

Conclusion.

33. In view of what has been stated above I am inclined to ignore from consideration the
initial three steps taken by P. W.7, Inspector Ijaz Hussain, which consist of (a) initiating
investigation without performing his statutory obligation to register the oral information
in the prescribed manner (b) submission of application to the learned Magistrate to secure
search warrant which application was allowed without applying his mind knowing fully
well that the order that he passed was judicial in nature and then (c) the action of the
police officer to embark upon investigation of the case.

34. The fact of the matter is that Fida Hussain and his associates according to the
complaining Inspector were controlling a brothel house but all of them have been
acquitted as there was no evidence to support conviction under sections 13 and 4 of the
Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The alleged crime spot
is reported to be in a village but is not possible to believe that the business of prostitution,
as recorded in the F.I.R. by the complainant Inspector of Police, was rampant and the
neighbourhood was in great agony but none from the neighbourhood appeared either to
witness a raid or to authenticate the element of recovery or to confirm the secret report of
the informer.

35. P.W.7 admitted in the cross-examination that Muhammad Ajmal P.W.4 "was a
journalist and on some occasions he used to accompany us." It clearly means that P.W.4
was a stock police witness. This admission explains the accusation of accused person that
P.W.4 was a black mailer and had a personal grudge against the principal accused.

36. No search warrant, in the form set forth in the fifth schedule as mandated by section
555 of the Code of Criminal Procedure, bearing the seal of the Court as visualized by
section 75 of the Code of Criminal Procedure, is available on the record of this appeal.
Warrant is a public document and could have been proved by production of a certified
copy as visualized by Article 88 of the Qanun-e-Shahadat Order, 1984. The only
document on record is an application Exh.P.N. moved by the complainant requesting for
issuance of a search warrant which application was allowed by the Magistrate. It is not
established on record that as a consequence of the order allowing the application
conditionally, any search warrant, in accordance with the form prescribed in Schedule-V
Page No. 13 of 14
of the Code of Criminal Procedure, was issued directing the Inspector P.W.7 to perform a
particular duty. There is no seal affixed on the application Exh.P.N. An inference,
however, can be drawn, after perusing the application that the police officer wanted
permission to effect arrest of a number of persons in a house where the offence was
allegedly being committed. A general warrant to apprehend more than one person is,
however, neither authorized by the Code of Criminal Procedure nor by Offence of Zina
(Enforcement of Hudood) Ordinance VII of 1979 and consequently all the proceedings as
a subsequence to submission of application Exh.P.N. are void. Under clause (d) sub
Article (i) of Article 112 of the Qanun-e-Shahadat Order, 1984, the Court is authorized to
take judicial notice of "the seal of all the Courts..." in Pakistan. Application Exh.P.N. does
not contain the seal of the Court either and hence it is not possible to take judicial notice
of the portion of the order which permitted conditionally the issuance of a search warrant.
P.W.7 in his examination-in-chief does not say that he obtained a search warrant. He say,
"after procuring permission for search I came back to Saleemabad...".

37. It is rather unfortunate to notice that the investigation and prosecution in certain cases
is not upto the mark. Can the Station House Officer be unaware of the existence of
brothel dens? Why cannot a raid be planned properly and legally when they have all the
time at their disposal? The dens must be destroyed but the action must be transparent,
bona fide and should not violate constitutional guarantees. Laws are subservient to
Constitution and wherever the Constitution declares a right to be subject to law it does
not mean that the guarantee of the right has been taken away. In such an event the law
must be followed strictly so that the guaranteed rights are duly honoured.

38. In view of what has been stated above, the conviction and sentence recorded by
learned Additional Sessions Judge, Dera Ghazi Khan on 28-4-2005 under section 10(2) of
the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, in Hudood case
No.6 of 2004, cannot be maintained. The appeal is hereby accepted. Appellant is present
on bail. Her surety is relieved of the obligation to produce her. The surety is discharged.

H.B.T./74/FSC Appeal accepted.

Page No. 14 of 14
2008 M L D 722

[Lahore]

Before M. Bilal Khan, J

ZAHID HUSSAIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 959/B 1023/B, 1050/B, 1051/B and 1148/B of 2008,
decided on 7th March, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.371-A & 371-B---Bail, grant of---Further

inquiry---Offence under S.371-A P.P.C. related to selling a person for the purpose of
prostitution etc., whereas S.371-B P.P.C. related to buying a person for the purpose of
prostitution etc.---Both said penal provisions in their respective explanations speak of
running or managing a brothel where, in a nutshell, women trade was being carried for
the purpose of prostitution---Even taking the prosecution case at its face value accused
persons could be customers and it was yet to be seen as to whether provisions of Ss.371-
A & 371-B P.P.C. could be invoked against them---Nothing was available on record to
show that the police had obtained any warrants for conducting a raid at the house and it
had yet not been determined as to who was the owner of the property; who were the
tenants and what was the role of the owner and the tenants---As to in what connection
accused persons were found present at the said place was not conclusively determined
yet---Case of further inquiry within the meaning of subsection (2) of S.497 Cr.P.C.,
having been made out in favour of accused persons, they were admitted to bail.

Mst. Rabia Bibi v. The State 2004 PCr.LJ 1451; Shafiq-ur-Rehman v. The State 2006
MLD 357 ; Saeed Bibi alias Sada and 4 others v. The State 2005 MLD 1391 and Zeshan
Ahmad v. The State 2007 YLR 1296 rel.

Zafar Iqbal Chohan for Petitioners.

Ghulam Murtaza Chaudhry for Petitioners (in Criminal Miscellaneous No.1023/R-2008).

Ghulam Siddique for Petitioners (in Criminal Miscellaneous No. 1050/B of 2008).

S.M. Farhad Tirmizi for Petitioners (in Criminal Miscellaneous No. 1051/B of 2008).

Shahzada Muhammad Zeeshan Mirza for Petitioners (in Criminal Miscellaneous No.
1148/B of 2008).

Ahsan Rasool Chatha, Deputy Prosecutor-General Punjab for the State with Niaz Ahmad,
A.S.-I.

ORDER

M. BILAL KHAN, J.---Zahid Hussain son of Sadiq Hussain, Ameer Tehsin-ul-Haq son
of Muhammad Hanif (petitioners in Criminal Miscellaneous No.959/B of 2008),
Muhammad Shafique son of Muhammad Bashir, Muhammad Ishaq son of Nazir Ahmad
(petitioners in Criminal Miscellaneous No. 1023/B of 2008), Noreen Akhtar daughter of
Qadir Khan (petitioner in Criminal Miscellaneous No.1050/B of 2008), Muhammad
Ismail son of Haji Miraj Din, Mushtaq Ahmad son of Muhammad Sharif (petitioners in
Criminal Miscellaneous No. 1051/B of 2008) and Muhammad Naeem son of Muhammad
Anwar (petitioner in Criminal Miscellaneous No.1148/B of 2008), by filing these
petitions seek post-arrest bail in case F.I R. No.1062, dated 14-12-2007, registered with
Police Station Satto Katla, Lahore for offences under sections 371-A, 371-B, P.P.C. at the
instance of Asif Hameed, S.-I. of the said Police Station. I propose to dispose of all these
Page No. 1 of 2
petitions together through this single order.

2. Precisely the allegation against the petitioners in all the petitions, according to the
F.I.R., was that during a raid conducted by the complainant along with his compatriots on
spy information that Bungalow No.91/J-1 was being used as a brothel, they had been
found busy in committing Zina in different rooms of the said house.

3. After hearing the learned counsel for the parties at considerable length and going
through the record brought by Niaz Ahmad, A.S.-I., it has been observed that the offence
under section 371-A, P.P.C. relates to selling a person for the purpose of prostitution etc.,
whereas section 371-B, P.P.C. relates to buying a person for the purpose of prostitution
etc. Both the aforesaid penal provisions in their respective explanations speak of running
or managing a brothel where in a nutshell women trade is being carried for the purpose of
prostitution. It is for this reason that the legislature in its wisdom has prescribed
imprisonment for life. Even taking the prosecution case at its face value, the petitioners at
worst may be customers and it is yet to be seen as to whether the aforesaid penal
provisions of section 371-A, 371-B, P.P.C. could be invoked against them. Even
otherwise, there is nothing available on record to show that the Police had obtained any
search warrants for conducting a raid at the aforesaid house. Reliance could profitably be
made to the cases of Mst. Rabia Bibi v. The State (2004 PCr.LJ 1451-Lahore), Shafiq-ur-
Rehman v. The State (2006 MLD 357-Lahore), Saeed Bibi alias Sada and 4 others v. The
State (2005 MLD 1391) and Zeshan Ahmad v. The State (2007 YLR 1296), wherein it
had clearly been held that no raid under the guise of looking for proclaimed offender or
the suspects could be conducted. It has yet not been determined as to who was the owner
of the property, who were the tenants and what was the role of the owner and the tenant.
It has also not so far been conclusively determined as to in what connection the
petitioners were found present at the said place. In these circumstances, case of further
inquiry within the meanings of subsection (2) of section 497, Cr.P.C. is made out in
favour of the petitioners.

4. Resultantly, I allow these petitions and admit the petitioners to post-arrest bail subject
to their furnishing bail bonds in the sum of Rs.50,000 each with one surety each in the
like amount to the satisfaction of the learned trial Court.

H.B.T./Z-2/L Bail granted.

Page No. 2 of 2
2007 Y L R 372

[Lahore]

Before M. Bilal Khan, J

Mst. SHUMAILA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.3947-B and 4334-B of 2005, decided on 14th June,

2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13

& 14---Bail, grant of---Further inquiry---F.I.R. had itself revealed that only allegation
against accused was that they were standing outside the house of ' woman who allegedly
was running a brothel house and nothing beyond that---Record had also revealed that at
present no worthwhile material was available to connect accused with the commission of
alleged offences---Case of accused, in view of prima facie dubious allegations in the
F.I.R. had become one of further inquiry within the meaning of subsection (2) of S.497,
Cr. P. C. ---Accused were allowed bail, in circumstances.

Malik Muhammad Imtiaz Mahl for Petitioner.

Khawar Mahmood for Petitioner (in Criminal Miscellaneous No.4334-B of 2005).

Malik Muhammad Arif Bara for the State.

Muhammad Akram, A.S.-I., P.S. Urban Area, Sargodha with Police File.

ORDER

M. BILAL KHAN, J.---Mst. Shumaila daughter of Muhammad Yousaf, petitioner

by filing Criminal Miscellaneous No.3947-B of 2005 and Mst. Kaneez wife of
Gulzar and Mst. Parveen wife of Sher by filing Criminal Miscellaneous No.4334-B
of 2005 seek their post-arrest bail in case F.I.R. No.147 dated 2-5-2005, registered
at Police Station Urban Area, Sargodha for offences under section 13/14 of the
Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 at the instance
of Abdul Latif Khan, S.I. of the said Police Station.

2. Briefly the case of the prosecution as it unfolded in the F.I.R. was that the
complainant, on receipt of the information laid before him by one Sufi Irshad
Ahmad that Mst. Sakina Bibi was running a brothel house and she had invited six
females and six males for immoral purpose, had raided her house and apprehended
thirteen persons, six females and seven males, named in the F.I.R. inclusive of the
petitioners, who were standing nearby the front door of her house.

3. The petitioners' plea for post-arrest bail did not find favour with the learned
Additional Sessions Judge, Sargodha, who turned down the same vide order dated
11-5-2005. Hence, this petition.

4. I have heard the learned counsel for both the sides and have also gone through the
record brought by Muhammad Akram, A.S.-I., Police Station Urban Area, Sargodha.

5. Perusal of the F.I.R. itself reveals that the only allegation against the petitioners
was that they were standing outside the house of Mst. Sakina Bibi and nothing
beyond that. The record also reveals that at present there is no worthwhile material
available to connect them with the commission of the alleged offences. In view of
the prima facie dubious allegations in the F.I.R., case of the petitioners becomes one
Page No. 1 of 2
of further inquiry within the meaning of sub-section (2) of section 497, Cr.P.C.

6. Resultantly, these petitions are' allowed and the petitioners are admitted to bail
subject to their furnishing bail bonds in the sum of Rs.10,000 (Rupees ten thousand)
each with one surety each in the like amount to the satisfaction of the learned trial
Court.

H.B.T./S-86/L Bail granted.

Page No. 2 of 2
2005 P Cr. L J 899

Page No. 1 of 5
[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J.

WAHEED ULLAH HABIB and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.190/I of 2004, decided on 15th February,

2005.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 154 & 155---Information about cognizable and non-cognizable cases---
Recording of---Officer Incharge of Police Station on receiving information relating to
the commission of an offence, was bound under S.154, Cr.P.C. to reduce same into
writing and investigate the matter, but pre-requisite for registration of F.I.R. was that
the information so received should be with regard to a cognizable offence otherwise it
could be simply entered in a book, kept for the purpose and informant be referred to
Magistrate as provided by S. 155, Cr.P.C.---Criminal proceedings instituted against
accused must be taken to logical conclusion and should not be interfered with at
initial or interlocutory stage, unless the allegations contained in F.I.R. or the
complaint at their face value did not disclose a cognizable offence or were not capable
to constitute the offence alleged or were so illogical that no sensible person could ever
reach to the conclusion that accused could be proceeded against on the basis thereof
or complaint was intended to settle score on account of any personal grudge or the
prosecution of the accused was barred by any law---In appropriate cases, where it was
apparent that police had transgressed its statutory power and apprehension was that
continuation of proceedings would be an exercise in futility or wastage of time and
could result in abuse of process of the Court, it could, in order to secure ends of
justice, be interdicted.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 249-A, 265-K, 561-A & 154---Inherent powers of the Courts---Scope---
Though no clog of time was on exercise of inherent powers by the Courts which
could be used at any stage, but since power of the Trial Court under S. 249-A,
Cr.P.C. and under S. 265-K, Cr.P.C. was co-extensive with similar power of High
Court under S. 561-A, Cr.P.C., F.I.R., if required, should be quashed at pre-trial
stage only when cognizance was not taken by the Court otherwise the matter
should be left at the discretion of Trial Court.

(c) Criminal Procedure Code (V of 1898)---

Page No. 2 of 5
----S. 561-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),
Ss.13 & 14---Foreigners Act (XXXI of 1946), S.14---Quashing of proceedings---
Allegations against accused in F.I.R. were only to the extent that at the time of raid
accused were found in house in question in semi-naked condition---No allegation was
levelled that accused at the relevant time, were either committing Zina or had any
intention to do so---Even there was no allegation that accused were found kissing or
embracing or were close to each other---No money was recovered from the possession
of woman against whom allegation was that she was running the brothel house---
Except allegation contained in F.I.R., neither any witness had seen accused persons
committing Zina or even attempting to do so---At the time of raid no witness of the
locality was associated to testify that house in question was being used as a
prostitution den---Material collected by prosecution including the statements of
prosecution witnesses recorded under S. 161, Cr.P.C., was not likely to improve the
case as disclosed in F.I.R. nor on the basis of allegations contained in F.I.R. as well as
material collected by prosecution, any cognizable offence was made out---Challan in
case had not so far been submitted despite the fact that F.I.R. was registered way back
in July, 2004---Continuation of proceedings in case would be mere an exercise in
futility---F.I.R. registered against accused was quashed, in circumstances.

Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Punhal Shah and
others v. The State PLD 1984 SC 22; Syed Murad Ali Shah v. Government of Sindh
PLD 2002 Kar. 464; Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600; Safia
Sultana v. The Station House Officer, Police Station Nawankot, Lahore PLD 1988
Lah. 714; Muhammad Younas v. The State PLD 1987 Lah. 7; Mukhtar Ahmad and
others v. The State 1984 PCr.LJ 92; Qaiser Saleem v. Hasham Hussain and another
1987 PCr.LJ 133; Karam Khan v. Khuda Bakhsh 1983 PCr.LJ 2004; S.M. Dutta v.
State of Gujrat and another AIR 2001 SC 3253; T.T. Anthoni and others v. State of
Kerala and others 2001(5) Supreme 131; Satish Mehra v. Dehli Administration and
another 1996(5) Supreme 742; Muhammad Bilal v. S.P. and others PLD 1999 Lah.
297; V.A. Khanna v. Jambo Electronics 1984 Cr.LJ 1967; Mian Munir Ahmad v. The
State 1985 SCMR 257; Mst. Sukhan v. The State 1985 PCr.LJ 110; Muhammad
Saleem and another's case 1988 PCr.LJ 2321 and Mst. Shakeela v. The State 2001
PCr.LJ 43 ref.

Malik Rab Nawaz Noon for Petitioners.

Shafqat Munir Malik, Asstt. A.-G. for the State.
Date of hearing: 7th October, 2004.

JUDGMENT
The petitioners have sought quashment of F.I.R. No.155, dated 5-7-2004,
registered under sections 13/14 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as "the Ordinance") read with section 14 of
the Foreigners Act, 1946 at Police Station Kohsar, District Islamabad.

2. Facts of the case, in brief, are that on receiving spy information that at
premises bearing No.52-B Nizamuddin Road, Sector F-7/4, Islamabad one Mst. Cao
Limin daughter of Czso is running a prostitution den and she invites hired customers
for Zina, on account whereof the inhabitants of the locality are highly disturbed and
such acts of her have also deteriorating effect on the society and if a raid is conducted
the people busy in debauch activities can be apprehended, red-handed, a raid,
supervised by City Magistrate, was conducted by the police party at the said premises
and the petitioners, who were allegedly found wearing under-wears, at the relevant
time and their female companions were in semi-naked condition, were apprehended.
As per contents of the F.I.R. since the petitioners could not produce passports or
permits to enter into Pakistan, at the time of raid, therefore, the F.I.R. under sections
13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with
section 14 of the Foreigners Act, was registered.

Page No. 3 of 5
 3. Record reveals that subsequent to their arrest the petitioners along with female
accused persons namely, Cao Limin and Lime Jun, moved an application for grant of
bail in the Court of Additional Sessions Judge, Islamabad, who having found that the
petitioners were in possession of the valid passports and the allegation against them
was only to the extent that they were present in the house in semi-naked condition and
they were not allegedly involved in commission of Zina and, therefore, it was a case
of further enquiry, admitted them to bail vide order, dated 13-7-2004.

4. It has been, inter alia, contended by Malik Rab Nawaz Noon, Advocate,
learned counsel for the petitioners that all the petitioners were holding valid passports
to enter into Pakistan by the competent authority as is explicit from the order of the
learned Additional Sessions Judge dated 13-7-2004 and ingredients of sections 13 and
14 of "the Ordinance" not spelling out from the perusal of the F.I.R. in the absence of
evidence that co-accused had sold, let to hire or otherwise disposed of any person
with intent that any such person may at any time be employed or used for the purpose
of prostitution or illicit intercourse with any person and petitioners' presence in the
said bungalow, which was a Chinese Restaurant and also a Hair Cutting Ceylon, could
not have culminated in registration of the case in hand particularly when there were
no signs or symptoms of their indulgence in sexual liaison with any of the female
accused persons. It is further his case that though the raid was allegedly supervised by
a Magistrate but, since statutory provisions of section 103, Cr.P.C. regarding
association of independent witnesses of the locality, was violated, therefore, no
sanctity can be attached, even to the allegation contained in the F.I.R. Learned counsel
for the petitioners has maintained that since no cognizable offence was made out and
any proceedings based on the F.I.R. may result in abuse of process of Court, therefore,
the F.I.R. may, in order to secure the ends of justice, be quashed.

5. Mr. Shafqat Munir Malik, Assistant Advocate-General, appearing for the State,
has confirmed that up till now challan in the case has not been furnished in Court and
that evidence collected by the prosecution would not improve the case of the
prosecution as disclosed in the F.I.R. In response to the query as to whether on the
basis of allegation contained in the F.I.R. any offence under sections 13/14 or even
under section 10(2) of "the Ordinance" was made out, the learned Assistant Advocate-
General candidly conceded that since allegation against the petitioners and evidence
collected by the prosecution also was to the extent only that they were found in under-
wears and females were also in semi-naked condition, therefore, in his view, no
offence, cognizable or otherwise, was made out.

6. I have given my anxious consideration to the respective contentions of the

learned counsel for the parties besides perusing the available record, minutely.

It may be mentioned here that though under section 154, Cr.P.C. an officer
Incharge of police station on receiving information relating to the commission of an
offence is bound to reduce the same into writing, and investigate the matter but
prerequisite for registration of F.I.R. is that the information so received should be
with regard to a cognizable offence otherwise it may be simply entered in a book, kept
for the purpose, and informant be referred to Magistrate as provided by section 155,
Cr.P.C.

It would also be not out of place to mention here that ordinarily, criminal
proceedings instituted against the accused must be taken to logical conclusion and
should not be interfered with, at initial or interlocutory stage, unless the allegations
contained in the F.I.R. or the complaint, at their face value, do not disclose a
cognizable offence or are not capable to constitute the offence alleged, or are so
illogical that no sensible person can ever reach to the conclusion that accused can be
proceeded against on the basis thereof or are intended to settle score on account of
any personal grudge or the prosecution of the accused is barred by any law, however,
in appropriate cases, where it is apparent that police has transgressed its statutory
power and the apprehension is that continuation of the proceedings would be an
exercise in futility or wastage of time and may result in abuse of process of Court
then, it may, in order to secure the ends of justice, be interdicted.

Page No. 4 of 5
 In the case of Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122,
complainant, in the F.I.R., which was based on his written application, had admitted
that the disputed amount was given to the accused as Qarz-e-Hasna. It was observed
that addition of the word "Amanat" with "Qarz-e-Hasna" was ridiculous and appeared
to have been added so as to justify registration of the criminal case. It was held that
no offence even on admitted facts, was made out against the accused as the dispute
was entirely of civil nature which, with ulterior motive was converted into criminal
proceedings and that proceedings in the trial Court on the basis of impugned F.I.R.
would have been sheer wastage of time. Quashment of the F.I.R. by the High Court,
therefore, was upheld. In the case of Punhal Shah and others v. The State PLD 1984
SC 22 too, it was held that report to be treated as F.I.R. must disclose reasonable
suspicion of cognizable offence. In the case of Syed Murad Ali Shah v. Government
of Sindh PLD 2002 Kar. 464, too, it was laid down that when a complaint
investigation/report or other step either in lodging F.I.R. or prosecution of a criminal
case was patently against the provision of any law or otherwise no case was possibly
made out, the proceedings were liable to be quashed. In the case of Altaf Hussain v.
Government of Sindh PLD 1997 Kar. 600, the Station House Officer had refused to
lodge F.I.R. It was held that where allegations made, without making elaborate
investigation into them, were hard to be believed, provision of section 154, Cr.P.C.
would not be attracted. In the case of Safia Sultana v. The Station House Officer,
Police Station Nawankot, Lahore PLD 1988 Lah. 714 too, the S.H.O. had refused to
register F.I.R., as according to him, no cognizable offence was made out. It was held
that significant prerequisite for registration of first information report was that the
information received must relate to commission of a cognizable offence or it must
disclose that cognizable offence has been committed. In the case of Muhammad
Younas v. The State PLD 1987 Lah. 7 the F.I.R. was lodged against the accused for
cheating by personation before Presiding Officer. The proceedings were challenged
before the High Court by way of petition under section 561-A, Cr.P.C. On inquiry,
since the Assistant Advocate-General submitted that on the basis of evidence already
recorded in Court, as well as on the basis of the statements of the witnesses made
under section 161, Cr.P.C. no offence was made out, therefore, the proceedings were
quashed. In the case of Mukhtar Ahmad and others v. The State 1984 PCr.LJ 92, the
allegation levelled against the accused persons was that wife of the complainant who
was also an accused in the case had allegedly misappropriated gifts given to her, by
her husband. It was held that since gifts given to the wife if utilized by her could
never give rise to a criminal liability of breach of trust, therefore, the proceedings
based on the complaint, could not have been permitted to continue. In the case of
Qaiser Saleem v. Hasham Hussain and another 1987 PCr.LJ 133 too, it was held that
proceeding of a criminal case was liable to be quashed if facts allegedly do not make
out a case of criminal liability. In the case of Karam Khan v. Khuda Bakhsh 1983
PCr.LJ 2004, the only allegation levelled against the accused was that he being an
influential person was patronizing the principal accused. It was held that since
allegation could not have been termed as abetment, continuation of proceedings
tantamounted to abuse of the process of Court. The same, was, therefore, quashed.

Reference in this regard, may also be usefully made to the following reported
judgments:--

(i) S.M. Dutta v. State of Gujrat and another AIR 2001 SC 3253; (ii) T.T.
Anthoni and others v. State of Kerala and others 2001(5) Supreme 131; (iii)
Satish Mehra v. Dehli Administration and another 1996(5) Supreme 742; (iv)
Muhammad Bilal v. S.P. and others PLD 1999 Lah. 297; (v) V.A. Khanna v.
Jambo Electronics 1984 Cr.LJ 1967; and (vi) Safia Sultana v. Station House
Officer Police Station Nawankot, Lahore PLD 1988 Lah. 714.

It would also be pertinent to mention here that though there is no clog of time
on exercise of inherent powers by the Courts which can be used at any stage yet,
since power of the trial Court under sections 249-A and 265-K, Cr.P.C. is co-
extensive with similar power of the High Court under section 561-A, Cr.P.C. as was
held in the case of Mian Munir Ahmad v. The State 1985 SCMR 257, therefore, in my
view, the F.I.R. if required, should be quashed at pre-trial stage only when cognizance
is not taken by the Court otherwise, the matter should be left at the discretion of the
trial Court.
Page No. 5 of 5
 7. Admittedly, the allegation against the petitioners contained in the F.I.R. is only
to the extent that at the time of raid the petitioners were found in the said house in
semi-naked condition. There is no allegation that they, at the relevant time, were
either committing Zina or had any intention to do so. Even there is no allegation that
they were found kissing or embracing or were close to each other. I have specifically
enquired from the Assistant Advocate-General as to whether any money was
recovered from the possession of Cao Limine against whom the allegation is that she
used to run a brothel house, and he, after consulting the concerned police officials
who are present in Court, has stated that nothing was recovered. He has also
confirmed that except the allegation contained in the F.I.R., neither any witness has
seen the petitioners as well as the female accused persons committing Zina or even an
attempt to do so. He has also confirmed that at the time of raid no witness of the
locality was associated.

In the case of Mst. Sukhan v. The State 1985 PCr.LJ 110, the case of the
prosecution was that Mst. Sukhan was abducted. The learned Additional Sessions
Judge tried the case and charged all the six accused persons including Mst. Sukhan
under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance,
1979. Mst. Sukhan. Despite the fact that none of the P.Ws. had stated that they had
seen Mst. Sukhan committing Zina with any of the accused persons, the trial Court
found her guilty and convicted her under section 10(2) of the Ordinance primarily for
the reason that the Chemical Examiner's report qua her vaginal swabs was found
positive. Appeal was filed in the Federal Shariat Court. While discussing the
proposition as to whether in the absence of proof of penetration which was essential
ingredient under section 4 of the Ordinance conviction for the charge of Zina can
sustain , it was observed that penetration was necessary in order to constitute the
offence of Zina and love making activities even whosoever, objectionable morally and
socially might be of such male and female like kissing, embracing or lying on same
cot or even lying on each other would not bring the case within the mischief of Zina
unless they indulge in actual penetration. In the case of Muhammad Saleem and
another 1988 PCr.LJ 2321, allegation against the accused persons was that at the time
of raiding the house of appellant Abida she and Muhammad Saleem appellant were
found in compromising position. On record only evidence against them was of P.W.2
Niazul Hassan who had deposed that when he raided the house he had found both the
appellants kissing and embracing each other. The charge against the appellants was of
attempt to commit Zina. It was held, by a Full Bench of this Court, that on the
allegation proved, by no stretch of imagination, it could have been stated that
appellants by kissing and embracing each other had attempted to commit Zina with
each other. If the allegation was true, even then it can only be said that at the most
they had intention to commit Zina but no one can be punished for mere intention to
commit a crime. Further, the alleged act of the two appellants in kissing and
embracing inside a house is not covered by any of the law relating to Hudood and
even not punishable under any of the sections of Penal Code or any other penal law
and a similar view was also taken by a single Bench of the High Court of Peshawar in
the case of reported as Mst. Shakeela v. The State 2001 PCr.LJ 43.

9. The upshot of the above discussion is that since, in the instant case, neither
any witness from the public has been associated by the prosecution to testify that the
house in question was being used as a prostitution den nor any money from the
possession of any of the accused persons has been recovered to believe that the
allegation contained in the F.I.R. was true and the material collected by the
prosecution including the statements of the P.Ws., recorded under section 161, Cr.P.C.
is not likely to improve the case as disclosed in the F.I.R. nor on the basis of
allegation contained in the F.I.R., as well as material collected by the prosecution any
cognizable offence is made out and challan in the case has not, so far, been submitted
despite the fact that the F.I.R., in the case, was registered way back in July, 2004,
therefore, I am of the view that continuation of proceedings in the case would be mere
an exercise in futility. Resultantly, the F.I.R. bearing No.155 dated 5-7-2004
registered at Police Station Kohsar is hereby quashed.

H.B.T./95/FSC F.I.R. quashed.

Page No. 6 of 5
2002 Y L R 324

[Lahore]

Before Mian Muhammad Jahangir, J

YASAR ARFAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 390-B of 2002, decided on 9th May, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.

10, 13 & 14---Bail, grant of---Further inquiry--Allegation against accused was that when
police parry raided the premises which allegedly was being used for running a brothel
house, accused was found in room of the house wearing his clothes and his coaccused girl
was found lying naked on bed--When police raided the house accused and coaccused
were not even involved in kissing and embracing or lying in compromising position---
Attempt to ,commit Zina was under clouds and prosecution had to prove at trial that
accused and his companion had already committed Zina---In order to attract provisions of
Ss. 13 & 14 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, there must be
a transaction of sale, hire or by a person with intention that such a person could be used
for purpose of prostitution or illicit intercourse---Such fact was to be proved by
evidence---Mere presence of males and females in the house of a stranger was not
sufficient to believe at bail stage that females were sold, hired or brought by some one for
illict intercourse---Head of raiding party did not disclose in his complaint that any pair
was busy in commission of Zina --- Case against accused being of further inquiry, interim
bail after arrest already granted to accused, was confirmed.

Muhammad Saleem and another v. The State 1998 PCr.LJ 2321 ref.

Malik Rab Nawaz Noon for Petitioner.

Syed Sajjad Hussain Shah, A.A.G., assisted by Mukhtar Ahmad Gondal for the State.

Date of hearing 9th May, 2002.

ORDER

Yasar Arfat son of Muhammad Yousuf has applied for his bail after arrest in the case
bearing F.I.R. No. 665 dated 7-12-2001, registered under sections 10, 13, 14 of the
Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, with Police Station
Sadiqabad, District Rawalpindi.

2. The allegation against the petitioner was that on 8-12-2001 at about 9-00 p. m. in the
area of Muslim Town, Rawalpindi when the police party headed by Inspector/S.H.O.
Police Station Sadiqabad upon an information with regard to running a brothel house
raided at the house bearing No. B-IV/608 owned by Muhammad Akram alias Shahid co-
accused, lie was found in the room of the house while wearing his clothes and that a
young girl in caked position was lying on the bed whose name as it transpired later on
was Nadia wife of Muhammad Zubair resident of Multan load, Lahore and thereafter co-
accused males and females were also apprehended from the game house, so at the
instance of Inspector/S.H.O., Police Station Sadiqabad the abovesaid case was registered.

3. Learned counsel for the petitioner mainly argued that the police party could not cnter
into the house without a search warrant, Therefore, the raid conducted by the police was
illegal, moreover, un-Islamic and that such-like acts on the part of police have been
condemned by the superior Courts. He added that there is no evidence on the question of
commission of Zina nor the petitioner was found in an attempt to commit Zina at the spot
Page No. 1 of 2
and that there is no convincing evidence that there was any prostitution den in that house,
therefore, it is a case of further inquiry. He referred to the case reported in Muhammad
Saleem and another v. The State 1998 P.Cr.LJ 2321 (FSC) and an unreported case bearing
Criminal Miscellaneous No.876-B of 1997 passed by my learned brother Muhammad
Nawaz Abbasi, J. as he then was, on 18-12-1997, in support of his arguments.

4. Which have been opposed by the learned Assistant Advocate-General who submitted
that if there is an information about commission of a cognizable offence in a house the
police is competent to conduct the raid but he could not refer any judgment of the
superior Court in support of this view. He further submitted that since the petitioner and
his companions males and females were found in the house of a stranger, therefore, mere
this fact is sufficient to attract the provisions of sections 13 and 14 of the Offence of Zina
(Enforcement of Hudood) Ordinance VII of 1979; that there is medical evidence on the
record which supports the allegation of Zina and that the accused in this case admitted
about the commission of Zina before the Illaqa Judicial Magistrate when they were being
sent to Jail and also in presence of their own counsel as it reflects from the impugned
order dated 9-12-2001 on the record. .

5. Even at this stage, the point for examination is as to which offence is constituted on the
basis of specific sentence used in connection with Yasir Arfat petitioner and Nadia co-
accused because allegedly Yasir Arfat was wearing his clothes while Mst. A, Nadia was
lying stark naked on the bed. It means that when the police raided at the house they were
not even involved in kissing and embracing or lying in compromising position, anyhow
this situation is to be thrashed out in detail at the time of framing of the charge but at
present ail attempt to commit Zina is under clouds and at trial the prosecution has to
prove that the petitioner and his companion had already committed the Zina even that in
the light of circumstantial evidence.

6. In order to attract the provisions of sections 13, 14 of the Offence of Zina f

Enforcement of Hudood) Ordinance VII of 1979, it is clear from the language used in this
section that there must be a transaction of sale, hire or by a person with intention that
such a person may be used for the purpose of prostitution or illict intercourse. Meaning
thereby it is a fact which is to be proved by evidence, therefore, mere presence of males
and females in the house of a stranger is not sufficient to believe at the bail stage that the
females were sold by any one or hired by any one or bought by some one for illicit
intercourse even otherwise the head of the raiding party did not disclose in his complaint
that any pair was busy in the commission of Zina because either he found lying naked on
the bed or two women or one male person sitting and waiting for the customer. So it is a
case of further inquiry to the extent of the present petitioner as well.

7. As a consequence of the discussion above, the interim bail after arrest already granted
to Yasir Arfat petitioner is confirmed subject to his furnishing fresh surety bond in the
sum of Rs. 50,000 with one surety in the like amount to the satisfaction of the learned
Sessions Judge, Rawalpindi. He is directed to attend the trial Court on each date till the
disposal of the case.

Petition is hereby accepted.

H.B.T./Y-17/L Bail granted.

Page No. 2 of 2
2001 P Cr. L J 685

[Lahore]

Before Riaz Kayani, J

NASREEN and another---Petitioners

versus

STATION HOUSE OFFICER, POLICE STATION BATALA COLONY,

FAISALABAD and 10 others---Respondents

Writ Petition No.4637 of 2000, heard on 20th October, 2000.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 13/14---Criminal Procedure Code (V of 1898), Ss.52 & 103--Constitution of

Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Police Officer
who was head of the patrol party had received an information through an informer that
the accused were running a brothel and the prostitutes alongwith their clients could be
recovered from there---Said Police Officer after having obtained search warrants from a
Magistrate raided the house and arrested the accused and registered the impugned
F.I.R.--Neither Code of Criminal Procedure, 1898 nor the Offence of Zina (Enforcement
of Hudood) Ordinance, 1979, had any provision authorising the Police Officer to make a
search, register a cognizable offence and thereafter to commence investigation on spy
information and absence of such provision was in consonance with the Injunctions of
Islam---No lady police official having accompanied the police party, search of the lady
accused and recovery of the tainted amount from her person was in violation of the
provisions of S.52, Cr.P.C.---Provisions of S.103, Cr.P.C. had also been grossly violated
while conducting the raid in the house of the accused, for which no explanation .had been
furnished---Magistrate had granted permission to the police to search the house in a
mechanical manner without application of mind---Search conducted in the case and the
F.I.R. registered against the accused in pursuance thereof were declared to be illegal and
without lawful authority in circumstances and the same were quashed accordingly.

Riaz v. Station House Officer, Police Station, Jhang City and 2 others PLD 1998 Lah. 35;
Noor Muhammad v. S.H.O., Police Station Klurkot, District Bhakkar and 4 others 2000
YLR 85 and Abdul Majeed v. Superintendent of Police and others PLI 1998 Lah. 1158
ref.

(b) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)--

----Preamble---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),

Preamble---Spy information---Incognito or anonymous information is totally and
completely excluded to be used as a ploy or means of information to rake up cases of
promiscuity, immorality or prostitution, allegedly practised in homes belonging to private
individuals, being in direct conflict with the provisions of the Offence of Qazf
(Enforcement of Hadd) Ordinance, 1979.

(c) Criminal Procedure Code (V of 1898)--

----S. 103---Search to be made in presence of witnesses---Section 103, Cr.P.C. is not a

decoration piece appearing in the Code of Criminal Procedure, but is a safeguard against
the police excesses by intervention of two respectables of the locality to be associated in
the search.

(d) Criminal Procedure Code (V of 1898)---

----Ss. 98 & 165---Search---Sections 98 & 165, Cr.P.C. have no application whatsoever to

a search made before any inquiry, investigation, trial or before recording of F.I.R.

Page No. 1 of 5
Riaz v. Station House Officer, Police Station, Mang City and 2 others PLD 1998 Lah. 35
ref.

(e) Criminal Procedure Code (V of 1898)---

----Ss. 52, 98, 103 & 16----Search---Guidelines for Magistrates in granting permission to
search---Whatever the purpose of search may be, Magistrate should always keep in mind
that the search conducted should be strictly in accordance with the provisions of the Code
of Criminal Procedure specifically when womenfolk reside in the premises---Search
being a visitation on the rights of privacy of the owner or possessor of the house,
Magistrate should be reticent in granting permission to search the house in a mechanical
manner .without application of mind.

Before obtaining search warrant the Magistrate is under a bounden duty to apply his mind
to allow permission or to refuse it. He should at least examine the Police Officer making
the request and if possible put him questions to satisfy his mind. There should be some
semblance of an inquiry to be made by the Magistrate before permission is accorded to
search the house of an individual, were it be to search the house to find out if the
premises are being used as a brothel house or to recover stolen property or Narcotics or
illegal arms. Whatever the purpose of search is, the Magistrate should always keep in
mind that the search conducted should be strictly in accordance with the provisions of
Code of Criminal Procedure specially when womenfolk reside in the premises. Search
always is visitation on the rights of privacy of the owner or possessor of the house and,
therefore, he should be reticent in granting permission to search the house in a
mechanical manner without application of mind. Law has conferred powers on the
Magistrates and these powers have only to be exercised carefully being very wary of the
powers of the Police Officer which may not be exercised to satiate personal vendetta or
when information is provided by a spy keeping in mind that such information is always
motivated by lust for money, which has been refused, and out of ill-will personal score
has to be settled. In the present case permission to search in case was accorded as if the
search warrants were for illegal confinement, the same having been issued under section
100, Cr.P.C. If this was the state of absent mindedness of a Magistrate who has been
invested with so many powers under the Code of Criminal Procedure, the police official
definitely will get encouraged to indulge in activities which are aimed to secure their own
motivated desires.

Nazeer Ahmad Ghazi for Petitioners.

A.H. Masood for the State.

Date of hearing: 20th October, 2000.

JUDGMENT

Nasreen and her husband have assailed the validity of F.I.R. No.434 registered under
sections 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)
with Police Station Batala Colony, Faisalabad on, 25-9-1999.

2. The prosecution version divulged in the referred to F.I.R., Authored by Khalid

Mahmood, Inspector/S.H.O., Police Station Batala Colony, Faisalabad, is that on the
night of 25-9-1999 at about 10-20 p.m. he alongwith Waheed Shahid, S.I. and Police
Constables arrayed as respondents Nos.3 to 9 were on patrol duty in official van
No.4532/FDU, when they reached Babar Chowk an informer informed him that Nasreen
wife of Muhammad Akbar and Muhammad Akbar son of Muhammad Ali residents of
House No.140-A, Garden Colony, Faisalabad had opened a brothel at their house and
send women with various people for immoral activities after receiving befty amounts.
Consequent upon' the spy information Abdul Waheed, Head Constable in private clothes
was given three currency notes of the denomination of Rs.1,000 each having initialled by
the first informant, thereafter, was sent as a dummy to the house of Nasreen for booking
of a girl, where having paid Rs.3,000 to petitioner No. I he was promised that after some
time a girl by the name of Asia would be sent with him for seeking pleasure through
fornication. It is stated that after obtaining search warrant from a Magistrate he in the
company of police posse raided the house of the petitioners at 140-A, Garden Colony and
Page No. 2 of 5
found Asia daughter of Zafar, Shamim daughter of Tariq and Shazia daughter of Ahmad
all assembled and present there for prostitution. The pimps Nasreen and Muhammad
Akbar alongwith Sultan son of Ghulam Rasool and three girls were taken in custody.
After the personal search of Nasreen a sum of Rs.3,000 in the form of currency notes in
the denomination of Rs.1,000 each initialled by the first informant were recovered which
were taken-. in possession vide memo. It is stated that Nasreen and others committed an
offence under sections 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance
VII of 1979 (hereinafter called the Ordinance).

3. Learned counsel at the very inception contended that Sultan who is dubbed by the first
informant as a customer on visit to the house of the petitioners to procure a girl for
prostitution was, as a matter of fact brother of Nasreen petitioner No. 1 as it, is obvious
from the Nikahnama of Muhammad Akbar with Nasreen where father's name of Nasreen
is stated to be Ghulam Rasool and Annexure "D" is the photo copy of identity card of
Sultan whose father's name is also Ghulam Rasool. Learned counsel went on to add that
Shameem was a maid-servant and the other two girls by the name of Asia and Shazia
were guests. The contention raised is primarily a question of fact requiring investigation
which I am not called upon to enter in the exercise of my Constitutional jurisdiction.
However, the argument of the learned counsel on legal plinth carries considerable force
and I must say so at the very outset that learned counsel rendered valuable assistance by
not only quoting the law but also referring to numerous passages from Holy Quran and
Sunnah of Holy Prophet (peace be upon him). Detailed arguments spreading over 35
pages were also submitted at the end of hearing of the case.

4. The main brunt of the argument of the learned counsel was twofold, firstly, that the
house was illegally searched leading to flagrant violation of not only of privacy, solace
and liberty of the inmates of the house but also being violative of the Fundamental Right
No. 14 which protected dignity of man and the privacy of home to be inviolable. Second
phase of the argument was that in no case a search of a house can be made incognito or
on anonymous information.

5. Learned counsel for the State mainly tried to defend the action of the Police Officer in
registering the case but admitted that the search was absolutely illegal and did not
conform to the provisions of the Code of Criminal Procedure.

6. After serious considerations, a detailed study of the case-law and thorough perusal of
the record I am in full agreement with the arguments of the learned counsel for the
petitioners for the reasons given in the ensuing paragraphs.

7. The information given to the Police Officer who was head of patrol party was through
an informer that the petitioners are allegedly running a brothel house and if a raid is made
the prostitutes used for flesh business alongwith clients would be recovered. I have
studied the Code of Criminal Procedure minutely and also the provisions of the
Ordinance. There is no provision whatsoever, in either the general or special law which
authorises the Police Officer to set in motion the machinery of search, registration of a
cognizable offence and thereafter to commence the investigation on spy information. The
absence of such provision is very well-understandable and is in consonance with the
tenants of Injunctions of Islam. At this juncture, before I proceed further it should be kept
in mind that no Police Officer can be compelled or persuaded to disclose the name of spy
who laid information before him. This being the position anything done in the present
case violates the provisions of Offence of Qazf (Enforcement of Hadd) Ordinance (VIII
of 1979). Qazf is defined in section 3 of the Qazf Ordinance according to which any
person by words spoken or intended to be written ... "makes or publishes an imputation of
Zina concerning any person intending to harm, or having reason to believe that such
imputation will harm the reputation, or hurt the feelings, of such person, is said, to
commit Qazf". Section 4 ordains punishment for Qazf which may be liable to Hadd or
Ta'zir. Now when the identity of a person giving spy information can be legally kept
secret how can the petitioners or any other person in their place in case the information is
found to be false proceed against such a person. In other words the reputation of a person,
against whom spy information is given may become totally shattered in the society, as a
result of the false information, and the lingering trauma continues unabated, rendering
him helpless just because the identity of a person remains secret. Law particularly defined
and elaborated in the Qazf Ordinance does not countenance such a situation, therefore,
Page No. 3 of 5
incognito of anonymous information is totally and completely excluded to be a used as a
ploy or means of information to rake up cases of promiscuity, immorality or prostitution
being allegedly practised in homes belonging, to private individuals being in direct
conflict with provisions of Qazf Ordinance.

8. The validity of the F.I.R. shall be squarely examined on the touchstone of the validity
of search conducted by the Police Officer. I called for the judicial record to satisfy myself
that the search warrants claimed to have been obtained by the first informant were in
accordance with law. After perusal of the request of the Police Officer, dated 24-9-1999,
permission was granted in the following words:--

"As per request Inspector/S.H.O. Police Station Batala Colony the search is allowed
exclusively for the purpose mentioned above under section 100, Cr.P.C."

9. The helpless Magistrate did not even bother to see as to what was section 100, Cr.P.C.
and whether it was relatable to the request made to him by the Inspector. Section 100
deals with confinement of such person, which the Magistrate believes to amount an
offence, he shall issue a search warrant enabling search of the person confined. The
warrant, therefore, issued is illegal and struck down for this simple reason alone.
Moreover, section 52 requires search of a female in presence of another woman with
strict regard to decency. Admittedly no woman Police Officer or official accompanied the
police party when petitioner No. 1 was searched and from her person allegedly Rs.3,000
were recovered. Apart from this, provisions of section 103, Cr.P.C. were also grossly
violated. Section 103, Cr.P.C. is not decoration piece appearing in the Code of Criminal
Procedure. It is a safeguard against the police excesses by intervention of two
respectables of the locality to be associated in the search. This section becomes more
applicable in the instant case as per allegations the petitioners were running a brothel
house and it is only two respectable witnesses of the locality who can throw sufficient
light and information on this aspect as they, in the capacity of neighbours would know
each and every activity about the immoral and unlawful act if it was being practised in
the house belonging to the petitioners. No reason whatsoever has been given for this
gross omission of not associating two respectable witnesses of the locality. The argument
that during these days of deteriorating law and order situation, interference by way of
witnessing a recovery or a happening is frequently loathed as it is bound to invite rancour
is not very apt in situations where a brothel house is being run in a locality inhabited by
respectables. In such-like situations the whole locality join hands to oust immorality as
there is genuine apprehension that glamour of beauty, charm and money may not creep
into their own house holds. People who stand united is a more fearsome force than the
police.

10. The other provisions relating to search are contained in sections 98 and 165 of the
Code of Criminal Procedure. Both these provisions of law came under discussion in the
case of Riaz v. Station House Officer, Police Station, Jhang City and 2 others reported in
PLD 1998 Lah. 35. After a detailed' discussion the learned Judge who had the benefit of
attending to the views expressed by Mr. Rafiq Ahmad Bajwa, Advocate as amicus curiae
came to try conclusion that both the above quoted provisions of law have no application
whatsoever to a search made before any inquiry, investigation or trial and further section
103, Cr.P.C. was rendered mandatory by virtue of subsection (4) of section 165, Cr.P.C. in
a search made by a Police Officer under the said provisions of law. The precedent case is
a judgment written by a learned Single Judge of this Court and I am in full agreement
with the views expressed therein. Therefore, no further dilation regarding sections 98 and
165, Cr.P.C. is called for, suffice it to say that the same does not apply to a search made
before recording of F.I.R. There is no corresponding provision of search of the nature
envisaged in the instant case in the special law i.e. the Ordinance.

11. Even otherwise before obtaining search warrant the Magistrate is under a bounden
duty to apply his mind to allow permission or to refuse it. He should at least examine the
Police Officer making the request and if possible put him questions to satisfy his mind.
There should be some semblance of an inquiry to be made by the Magistrate before
permission is accorded to search the house of an individual were it to be search the house
to find out if the premises are being used as a brothel house or to recover stolen property
or Narcotics or illegal arms. Whatever the purpose of search is, the Magistrate should
always keep in mind that the search conducted should be strictly in accordance with the
Page No. 4 of 5
provisions of Code of Criminal Procedure specially when women-folk reside in the
premises. Search always is visitation on the rights of privacy of the owner or possessor of
the house and, therefore, he should be reticent in granting permission to search the house
in a mechanical manner without application of mind. Law has conferred powers on the
Magistrates and these powers have only to be exercised carefully being very wary of the
powers of the Police Officer which may not be exercised to satiate personal vendetta or
when information is provided by a spy keeping in mind that such information is always
motivated by lust for money, which has been refused, and out of ill-will personal score
has to be settled. To my utter amazement permission to search in this case was accorded
as if the search warrants were for illegal confinement, the same having been issued under
section 100, Cr.P.C. If this is the state of absent mindedness of a Magistrate who has been
invested with so many powers under the Code of Criminal Procedure, the police official
definitely will get encouraged to indulge in activities which are aimed to secure their own
motivated desires. In conclusion the search conducted in law rather this case is declared
as totally illegal being contrary to inapplicable to the facts of the case.

12. Learned counsel desired that a lengthy judgment dealing with the Islamic aspects be
rendered so as to settle the issue of search made in suchlike cases once for all. After going
through the law I find that this aspect has been dealt in detail in the case of Riaz v. Station
House Officer, Police Station, Jhang City and 2 others PLD 1998 Lah. 35, Noor
Muhammad v. S.H.O. Police Station Klurkot, District Bhakkar and 4 others 2000 YLR 85
and Abdul Majeed v. Superintendent of Police and others PLJ 1998 Lah. 1158 and many
decisions of the Federal Shariat Court appearing in Law Journals from time to time. I,
therefore, do not find it necessary to dilate upon this issue any further as it would amount
to repetition of case-law decided in so many precedent cases and leave this aspect to be
considered in any other case at an appropriate time.

13. The upshot of the discussion, therefore, is that F.I.R. No.434 registered with Police
Station Batala Colony, Faisalabad on 25-9-1999 under sections 13/14 of the Ordinance is
quashed being without lawful authority and against the provisions of law of search
embodied in the Code of Criminal Procedure.

N.H.Q./N-58/L F.I.R. quashed.

Page No. 5 of 5
2001 P Cr. L J 309

[Lahore]

Before Raja Muhammad Sabir, J

Mst. BASHIRAN and 2 others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.760/B of 2,000, decided on 19th April, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),

Ss.10/13/14/18---Bail, grant of---Plea of valid Nikah---Case of further inquiry---Accused
persons were arrested by the police in a raid conducted at the house of the accused
persons on the allegation of running a brothel house---Accused persons produced
Nikahnamas in their support arid the same were proved during investigation---Case of
accused persons being that of further inquiry, bail was allowed.

Altaf Ibrahim Qureshi for Petitioners.

Tariq Murtaza Khan Malezai for the State.

Date of hearing: 19th April, 2000.

ORDER

Petitioners seek post-arrest bail in a case registered vide F.I.R. No.68 of 2000 under
Article 18/10/13/14 of the Offences of Zina (Enforcement of Hudood) Ordinance No-VII
of 1979 at Police Station Danewal District Vehari.

2. Briefly the facts of the case are that on a spy information that Mst. Bashiran petitioner
is running a brothel house opposite to the office of S.E. WAPDA Danewal through her
daughters. Four persons are present in her house and if raid is conducted they can be
caught red-handed. Accordingly the S.H.O. formed a raiding party, conducted the raid
and four persons Mukhtar Hussain, Ghazanfar Ali, Zahir Javed and Wasim Haider, Mst.
Robina and Mst. Samina daughters of Akbar were found naked in the house. Mst.
Bashiran was found guarding the house by standing outside. These persons were made to
wear the clothes. They were arrested and case was registered.

3. Learned counsel for the petitioners submits that the petitioners have mala fidely been
involved in the case. Petitioners Nos.2 and 3 are wives of Zahid Javed and Wasim Haider
respectively. This fact was verified by the respectables of the area and the relatives of the
petitioners and also by Nikah Khawan. The version of the prosecution is false and
fabricated one. Petitioners are ladies, therefore, their case falls within first proviso of
section 497, Cr.P.C.

4. Learned State Counsel has opposed the grant of bail.

5. Heard. Record perused. The Police Officer present alongwith record admits that
petitioners Nos.2 and 3 claim to be wives of Zahid Javed and Wasim Haider. However, he
stated that Nikah Namas were not produced, therefore, they have been challaned. He
further, admits that they are not involved in any other case of this nature. Petitioner No. l
is mother of the petitioners Nos.2 and 3. The allegation of the prosecution that they were
found naked in the company of aforesaid Zahid Javed and Wasim Haider and two others
needs further inquiry particularly when petitioners Nos.2 and 3 claim to be their wives.
This fact was stated before the Investigating Officer during investigation by respectables
of the village as well as by Nikah Khawan. In the presence of husband it is not believable
that two other persons will commit Zina with petitioners Nos.2 and 3. The whole story A
Page No. 1 of 2
narrated in-the F. I. R. appears to be a poked up affair. The history of the petitioners does
not show that they are carrying on a brothel house as alleged in the F.I.R. Petitioners are
women, therefore, their case falls within first proviso of section 497, Cr.P.C.

6. For the reasons stated above, this petition is allowed and the petitioners are admitted to
bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety in
the like amount each to the satisfaction of the trial Courts.

Q.M.H./M.A.K./B-26/L Bail allowed.

Page No. 2 of 2
1994 P Cr. L J 2352

[Lahore]

Before Sh. Muhammad Zubair, J

Mst. KHANUM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3096/B of 1993, decided on 5th October, 1993.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.

10/13/14---Bail, grant of---Evidence collected by the Police so far showed that the
accused was running a brothel house in her abode, but no cogent evidence was available
to show that the accused had engaged or hired the girl found in her house for
prostitution---Case against accused, therefore, was one of further inquiry and she was
admitted to bail accordingly.

Lal Khan Baloch for Petitioner.

M. Jahangir for the State.

Date of hearing: 5th October, 1993.

JUDGMENT

The petitioner who is involved in a case under section 10/13/14 of Ordinance VII of
1979, arising out of F. I. R. No. 127, dated 6-6-1993, registered at Police Station Lallian,
District Jhang, seeks to be admitted to bail.

2. As per F. I. R., it is alleged that on spy information the police conducted raid at the
house of the petitioner and two persons Gul Nawaz and Abdul Ghafoor were found
committing Zina with Mst. Nusrat in her house under her supervision and guard.

3. Learned counsel for the petitioner contended that the petitioner being a woman is
entitled to preferential treatment in view of proviso to section 497, Cr. P. C. Learned
counsel further contended there is no evidence whatsoever on the record to connect the
petitioner with the offences under sections 13 and 14 of Ordinance VI of 1979; hence in
the presence of this material the case against the petitioner is one of further inquiry and
she is entitled to the grant of bail even in a case which falls within the prohibitory clause.

4. Learned counsel for the State vehemently opposed this bail application on the ground
that specific allegation has been levelled against the petitioner and there is no material on
the record to show that the petitioner has been involved on account of enmity between the
petitioner and one Bashir Ahmad, A. S. I. hence the petitioner is not entitled to the grant
of bail.

5. I have heard the learned counsel and have perused the record. I find substantial force in
the submission of the learned counsel for the petitioner that at present there is no material
available on the record to prima facie connect the petitioner with the offence. The only
evidence collected so far by the police is that the petitioner was running a brothel house
in her abode but there is no cogent evidence to show that Mst. Nusrat was engaged or
hired by the petitioner A for prostitution; hence the case against the petitioner being one
of further inquiry, she is admitted to bail in the sum of Rs. 1,00,000 (one lac only) with
one surety in the like amount to the satisfaction of the Assistant Commissioner, Chiniot.

N.H.Q./K-109/L Bail granted

Page No. 1 of 2
1990 P Cr. L J 1538

[Lahore]

Before Rashid Aziz Khan, J

MUHAMMAD BOOTA ANJUM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.102/Q of 1989, decided on 3rd May, 1989.

(a) Criminal Procedure Code (V of 1898)---

----S. 561---Penal Code (XLV of 1860), S.182---Quashing of proceedings--Application

was moved by accused before Superintendent of Police for initiation of proceedings
against husband and his wife alleging that they were running a brothel house and that his
wife also indulged in Zina---Superintendent of Police sent application to Station House
Officer of Police Station who after enquiry found allegations levelled by accused against
husband and wife, baseless and submitted challan against accused under S.182, P.P.C:
--Accused sought quashment of proceedings against him challenging competency of
S.H.O. to take action against him ---S.H.O., to whom application was sent by S.S.P. for
inquiry, held, was competent to take action against accused.

(b) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 7---Offence of Qazf---Accused proceeded against Offence of Qazf for alleging a

woman indulging in Ziria---Contention that he could not be tried for offence, because
under law proceedings could be taken against him only on application of woman against
whom alleged false allegation had been levelled, while he had been proceeded on
application of her husband was repelled observing that Trial Court while disposing of
application for quashment had specifically mentioned that charge of Qazf was added in
application of the woman.

Muhammad Sharif Butt for Petitioner.

Najam-uz-Zaman, Asstt. A: G. for the State.

ORDER

The facts leading to the filing of this quashment petition are that the petitioner had given
an application to S.S.P., Faisalabad, requesting for initiation of proceedings against one
Mst. Amna Bibi and her husband Inam-ul-Haq with the allegation that they were running
a brothel house and Mst. Amna Bibi also used to indulge in Zina. The application was
enquired into by S.H.O. Police Station Factory Area, Faisalabad, who found it baseless
and submitted challan against the petitioner under section 182, P.P.C. Thereafter, the
Magistrate amended the charge from Section 182, P.P.C. to section 7 of Qazf
(Enforcement of Hudood) Ordinance and committed the case to the Court of Sessions.
The petitioner moved an application for the quashment of proceedings against him which
was disposed of by the learned Sessions Judge, Faisalabad, on 10-4-1989.

It is contended by learned counsel for the petitioner that the petitioner cannot legally be
tried for an offence of Qazf because under the law the proceedings can be taken only on
the application of a person against whom false allegation has been levelled.

Submits that in the present case Inam-ul-Haq husband of Mst. Amna Bibi had given the
said application on which no order could be passed. Submits that the application was
given by the petitioner to the S.S.P., therefore, he alone could have decided to proceed
against the petitioner under section 182, P.P.C. the S.H.O. concerned was not competent
to take such an action. Contentions have been opposed by learned Assistant Advocate-
General.
Page No. 1 of 2
2. I have heard the learned counsel and perused the record. The application was moved
by the petitioner before S.S.P. who, without taking any action sent it to the concerned
S.H.O. In these circumstances, the S.H.O. was the competent persons to take action
against the petitioner under section 182, P.P.C. Even otherwise also, this point would not
be available to the petitioner any more because he would not be proceeded against under
section 182, P.P.C. As far the contention of learned counsel that action under section 7 of
Qazf Ordinance can Amna Bibi which order of the g has of petition

H.B.T./M-/1865/L Petition dismissed.

Page No. 2 of 2
1989 M L D 4791

[Lahore]

Before Rashid Aziz Khan, J

Mst. SHAMEEM alias AASHEE--Petitioner

versus

THE STATE--Respondent

Criminal Miscellaneous No.1868-B of 1989, decided on 27th June, 1989.

Criminal Procedure Code (V of 1898)-- -

---S.497--Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) Ss.13, 14

&. 18--Bail, grant of--Accused was allegedly running a brothel house-Assertion was not
supported by any evidence on record--No allegation of receiving any money from the two
persons found present there for commission of Zina with other women was levelled--No
money was recovered from accused-Bail granted in circumstances.

Ch. Muhammad Ahad for Petitioner.

Imran Nazir for the State.

ORDER

Petitioner Mst. Shamim alias Aashee has applied for bail in a case registered against her
and some others with Police Station Sanda, Lahore for an offence under sections 13/14
and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide F.I.R.
dated 12-3-1989. The allegations as contained in the F.I.R, are that the first informant
Niamat Ali, A.S.I. received information that the petitioner was running a brothel house.
She had kept a boy by the name of Riaz who brought men to the said house for purposes
of commission of Zina. In pursuance of said information, a raiding party was constituted
which raided the premises, where the petitioner along with one Riaz was sitting in the
court-yard. In a room there were two cots on which the co-accused of the petitioner were
sitting and were preparing for the commission of Zina.

It is contended by learned counsel for the petitioner that there is no evidence which could
indicate that the petitioner was running a brothel house. Submits that at the time of
commission of the offence, the petitioner was sitting in the court-yard, therefore, she
cannot be held responsible for what was happening inside the room. Contends that the
allegation that in one room two different men were found with two women naked,
preparing for the commission of Zina, is most unnatural. The contentions have been
opposed by learned counsel for the State.

2. I have heard the learned counsel and perused the record. The allegation against the
petitioner is that she was running a brothel house, but so far there is no evidence on the
file which could lend support to this assertion. There is no allegation that the two men
who were found m the house so raided, had paid any money to the petitioner for the
purpose of commission of zina with two other women, who were also co-accused. At the
time of raid no money was recovered from the possession of the petitioner.

In these circumstances, I feel it is a case of further inquiry, therefore, she is allowed bail
provided she furnishes security in the sum of Rs.25,000 with two sureties, each in the like
amount to the satisfaction of Assistant Commissioner/Duty Magistrate concerned.

SA./S-541/L

Bail granted.

Page No. 1 of 1
1987 P Cr. L J 1021

[Lahore]

Before Muhammad Rafiq Tarar, J

ALI AHMAD and others--Petitioners

versus

THE STATE--Respondent

Criminal Miscellaneous No. 3354/B of 1986, decided on 22nd December, 1986.

Criminal Procedure Code (V of 1898)--

---S. 497--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2),

13, 14 & 18--Bail, grant of--F.I.R. showing that complainant's wife deserted him about
four months prior to registration of case and started living with her father, who was
allegedly running a brothel in his house--Complainant having strained relations with
petitioners on account of wife's desertion and her father's refusal for her restoration to
him--Co-accused already enlarged on bail by Court-Petitioners allowed bail, in
circumstances.

Muhammad Arshad for Petitioners.

Imtiaz Ahmad for the State.

Date of hearing: 22nd December, 1986.

JUDGMENT

Ali Ahmad, Mat. Shamshad Bibi and Mst. Safia Mumtaz petitioners have moved this
petition for bail in a case registered against them under Articles 10(2), 18, 13 and 14 of
the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The F.I. R. version is that Mst. Shamshad Bibi, wife of Abdul Sattar complainant,
deserted his house about four months prior to the registration of the case and started
living in the house of her father, Ali Ahmad petitioner. The complainant asked Ali Ahmad
for her restoration but he declined to do so as he was running a brothel in his house. On
6-8-1986 the complainant learnt that Zina was being committed in the house of Ali
Ahmad, upon which he alongwith Bashir Ahmad, Muhammad Amin, Farid Ali and Zafar
went to his house and found Mst. Safia Mumtaz petitioner and co-accused Muhammad
Sharif in one room and Muhammad Abbas and Mst. Shamshad Bibi in the other.
Shalwars of both the women were not on their persons. Their alleged partners were lying
on them in order to commit Zina. The complainant and his companions apprehended the
petitioners and their co-accused and produced before the police.

3. I have heard the learned counsel for the parties. Perusal of the F. I. R. clearly indicates
that the complainant was having strained relations with the petitioners as Mst. Shamshad
Bibi petitioner had deserted his house and Ali Ahmad petitioner had not acceded to his
request for her restoration. Mst. Safia Mumtaz and Mst. Shamshad Bibi are women. Ali
Ahmad petitioner is the husband of Safia Mumtaz and father of Mst. Shamshad Bibi. On
inquiry, the learned State counsel submits that co-accused Muhammad Sharif has been
admitted to bail by the Additional Sessions Judge. In the circumstances, I feel inclined to
the view that a case for the enlargement of the petitioners is made out. I, therefore' admit
them to bail in the sum of Rs.25,000 with one surety each in the like amount to the
satisfaction of Assistant Commissioner, Pakpattan Sharif.

S.G.D./A-23/L Bail allowed.

Page No. 1 of 1
1985 M I. D 1362

[Lahore]

Before Riaz Ahmad, J,

RAZIA BIBI--Petitioner

Versus

THE STATE--Respondent

Criminal, Miscellaneous No. 3093/B of 1984, decided on 24th November, 1984.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

---S. 10/13/18--Brothel house--Accused allegedly running brothel house--Other two

accused women apprehended during raid bailed out-Petitioner in judicial lock-up for 4i
months---Bail granted.

Yahya Saleem for Petitioner.

Ashraf Khan for the State.

Date of hearing: 24th November, 1984.

ORDER

The petitioner is involved in a case registered against her and two others under the
provisions of section 10/13/18 of Offence of Zina (Enforcement of Hudood) Ordinance
VII of 1979. The said case was registered, vide F.I.R. No. 167, dated 11-7-1984 by the
Police Station, Saddar Faisalabad. The allegation against the petitioner is that she is
running brothel house and provides women for the commission of Zina.

Allegedly on 11-7-1984 the petitioner was seen receiving Rs. 300 Javaid Iqbal and
Muhammad Rafi as a consideration for making one Surraya Begum and Kulsoom Begum
available for Zina by the aforesaid Javaid Iqbal and Muhammad Rafi. A raid was
conducted and two women, namely, Surraya Begum and Kulsoom Begum were taken
into custody. It may be stated here that both of these women are mother and daughter.
The learned counsel for the petitioner contended that the case is false and in fact Zina had
not been committed. The Investigating Office informed me that both these women were
not related to the petitioner and at least with one of them the Zina had been committed.
The vaginal swabs taken proved that they were stained with semen. On the other hand the
learned counsel stated that such discovery of semen was result of the commission of
sexual intercourse by the husband of the aforesaid women and not by Javaid Iqbal sad
Muhammad Rafi. According to the learned counsel, such fact was substantiated by the
husband of the said women.

3. The learned counsel further contended that since both the aforesaid women have
already been released on bail, therefore, the petitioner is also entitled to the grant of bail,
because she is in judicial lock-up for the last 4) months. Considering entire case and
without expressing any opinion on the merits of the case, I am of the view that the
petitioner is entitled to the grant of bail. Accordingly, I hereby admit the petitioner to bail
provided she furnishes security in the sun of Rs. 10,000 with one surety in the like
amount to the satisfaction of the Assistant Commissioner, Faisalabad.

A.A. Bail allowed.

Page No. 1 of 1
1977 P Cr. L J 576

[Lahore]

Before Abdul Jabbar Khan, J

GULZAR AHMAD AND OTHER---Petitioners

Versus

THE STATE-Respondent

Criminal Revision No. 269 of 1974, decided on 1st March 1977.

Penal Code (XLV of 1860)-

-- Ss. 268 & 290-Conviction, propriety of-Petitioners complained against for running a
brothel in their house by offering their daughters for prostitution to visitors and allowing
them to drink within premises of their house to great annoyance of
neighbours-Proceedings under Ss. 268 & 290, P. P. C., held, misconceived-Law attracted
in situation, held further, could be proceeding under Suppression of Prostitution
Ordinance-Convictions and sentences set aside, in circumstances.-[Public nuisance].

M. Anwar Sipra for Petitioners.

Khurshid Iqbal for the State.

Late of hearing 1st March 1977.

JUDGMENT

Gulzar Ahmad alongwith his wife Balqees were tried under section 290 P. P. C. by Syed
Nasir Ali Shah, Magistrate 1st Class. Bhalwal who vide his judgment dated 17-8-71
found them guilty and convicted and sentenced then, to pay a fine of Rs. 50 each or in
default to undergo two months' R. I. each. Aggrieved against their conviction and
sentence they filed an appeal in the Court of the learned Additional Sessions Judge,
Sargodha who vide his judgement dated 30-7-73 maintained their conviction and
sentence. A revision petition was filed by the petitioners against the judgments of the two
Courts below which was admitted by this Court on 9-5-74.

2 The brief facts of the case are the one Vakil, a neighbour of these two petitioners moved
the local police to take action against them as according to this complainant these two
petitioners were indulging in the immoral activities, and were offering their daughters for
the purpose of prostitution. It was .So further stated that a number of people with bad
antecedents visited their house and used to drink there. The case was investigated by the
police d they were ultimately challaned.

2-A. A legal point was raised before the learned Sessions Judge that the police was not
authorised to investigate a non-cognizable offence and therefore the trial of these two
petitioners stood vitiated. This point was considered and decided by the learned Sessions
Judge against the petitioners as the learned sessions Judge relying on Sadan v. State (P L
D 1965 B J12) found that such like investigation although unauthorised would hardly
affect the trial, of persons who ultimately were challaned by the police before the trial
Court. It is pertinent to note that the learned Sessions Judge did not advert to the merits of
the case in appeal and also failed to consider whether the mischief of section 290 of the
Pakistan Penal Code was attracted in the case of petitioners. This appeal was disposed of
only on this legal paint.

3. I have heard the learned counsel on behalf of the petitioners as well as counsel for the
State and perused the record of the case carefully with their assistance. It has been
contended on behalf of the learned counsel for the petitioners that the application of
section 290 is misconceived as the offence for which punishment has been prescribed
does not fall under section 268 or 290, P. P. C. It was further contended that the reading of
Page No. 1 of 1
section 268 will show that no offence is made out against the petitioners in this, case. It
wag further submitted that the judgments of the two Courts below further suffer from
misreading of evidence for the reason that although all the witnesses who appeared
against these petitioners have admitted their enmity with them but the same has not been
considered while assessing the guilt of the petitioners.

4. I have given my anxious thoughts to the contentions raised by the learned counsel for
the petitioners and will reproduce section 268, P. P. C. as it would be useful to assess the
strength of the contention so advanced, It runs as under:

"S. 268.-A person is guilty of a public nuisance who does any act or is guilty of an
illegal omission which causes any common injury, danger or annoyance to the
public or to the people in general who dwell or occupy property in the vicinity, or
which must necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience
or advantage."

In the instant case the complaint, which was made by Vakil complainant (P.W.1) was that
the petitioners were in a way running a brothel in their house and were offering their
daughters for prostitution to visitors who used to visit their house. The second grievance,
which was made by the complainant was that the people used to drink within the
premises of their house which annoys him as well as the other neighbours In this respect
the learned counsel for the petitioners argued that this act in itself digit not constitute any
offence. In support of his contention he relied upon A I R 1950 Cal. 330. The complainant
was supported by as many as 8 P. Ws. and controverted by two D. Ws. While going
through the evidence of these P. Ws. I find that Shera (P. W. 2) had a positive motive to
state against the petitioners as he admitted during the course of cross-examination that the
wife of Gulzar Ahmad petitioner that is. Balqees, now petitioner before me in this case,
had filed a criminal case against his wife. Similarly he accepted that Vakil complainant
(P. W. 1) was also locked into litigation with these two petitioners. Similarly P. W. 3 Bad
accepted that he was brother-in-law of Vakil complainant though he denied the
knowledge of any previous litigation between Vakil and the petitioners. Inayat Ali (P. W.
4) made a sort of general statement regarding the character of the petitioners and did not
quote any instance of their immorality or any overt act, which brought their actions
within the mischief of section 268 or 290, P. P. C. In cross-examination he accepted that
the petitioners were leading an immoral life for 12/14 years but he never chose to lodge a
complaint against them during that long period. The entire evidence on the record against
the petitioners consists of general allegations and while going through this evidence one
finds that it consists of certain interested persons who have played on the tune of Vakil (P.
W. 1) who actually wanted that the petitioners should come to harm due to the previous
strained relations with them. I am constrained to observe that this important aspect of the
case has been completely ignored by both the Courts below and they have failed to
believe the two D. Ws. who also belong to the same Mohallah and came forward to
depose that the petitioner Gulzar Ahmad was a photographer and bears good moral
character. Be that as it may, I cannot ignore a very important aspect of this case and that
is that the main grievance of the complain ant in this case was that the petitioners were
running a brothel. In that situation the law attracted in their case should have been
proceedings under the Suppression of Prostitution Act and not action under section
290/268, P. P. C. Even if there would have been some evidence on the record to show that
the petitioners were indulging in the act of prostitution I wonder how the conviction
could have been brought against them under section 268/290, P. P. C. In view of this legal
position I am of the considered opinion that both the Courts below have fallen into error
by finding that the complaint made out against the petitioners fell within the mischief of
the section for which they have been convicted.

5. In view of the above analysis of the prosecution evidence on the record as well as the
misconceived application of section 290, P. P. C. against the petitioners I set aside both
the orders of the Courts below and proceed `t to acquit the petitioners. The fine, if paid by
them, would be refunded to them.

Petition allowed.
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