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Petitioner: Mst. SHEHNAZ alias ASMA alias RANI and another VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Syed Afzal Haider Title: Mst. SHEHNAZ alias ASMA alias RANI and another vs THE STATE Case No.: Criminal Appeal No,142/L of 2005 Date of Judgment:2008-11-14 Reported As: 2010 P Cr. L J 231 Result: Appeal accepted
JUDGMENT
JUDGMENT SYED AFZAL HAIDER, J.--- Introduction ' Mst. Shahnaz alias Asma alias Rani and Mst. Naila alias Shamim have through this appeal challe ged the judgment dated 28-4-2005 delivered by learned Additional S ssions Judge, Dera Ghazi Khan whereby both the appellants were convi ted under section 10(2) of the Offence of Zina (Enforcement of Hudoo ) Ordinance (VII of 1979) and sentenced to five years rigorous impris ent each with a fine of Rs,10,000 each and in default whereof to rther suffer three months simple imprisonment each. Benefit of secti n 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
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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 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 farther 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 swa bs 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 die 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
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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 pblice 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." (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. Nasini 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 neighbourerl 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 Zulfiqai 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 hid 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 I 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 Ulljah Farooq, Mst. Lubna and Mst. Nasim and they were consequently acquitted of the charges under sections 13/14 of Offence of Zina (Enforcejment of Hudood) Ordinance, Vll of 1979 while the appellants Mst. Sqahnaz 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 leamed counsel for the appellant as well as leamed D.P.- G. For thej State:-
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(i) Leamed 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. i (n) 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. (iv) 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 cash from accused other than Fida Hussain. (v) That Exh.P.0 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. 13. #TBS 14. JOURNAL [Vol. XLIII 15. Llaqa Magistrate passed the said premises subject to 16. #TBE 17. 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 242 PAKISTAN CRIMINAL LA was made on 25-1-2001 and the learned following order on the same day:--- "Allowed to enter and search t authenticity of informer." This order does not bear the se warrant as a consequence of the search hav in the prescribed form fulfilling the necessa Thereafter, the Inspector conducte Hussain (the acquitted accused). He fou Nasim, Sohanra and Ubaidullah were presen room No,1 Zulfiqar accused and Mst. Muhammad Akram and Mst. Shahnaz, app. Recoveries were effected and accused forma of the Court. No search ng been allowed, was issued conditions. a raid at the house of Fida d that Fida Hussain, Mst. In the courtyard whereas in Naila and in room No,2 Ilant were committing Zina. Ly arrested.
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13. 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 he started investigation of the case. He also prepared rough site pl. Is of the place of occurrence and sent the female accused for medical exa ination. #TBS .P.N. That neither the house is application nor was the gistrate to help him from hort order of the Magistrate y sort before him to make cause the person will not Inspector neither made a of a thing. The application where some persons were of human beings cannot be hing. Had a crime report of ye investigated the case and any cognizable offence or of his involvement in the ere were reasons to issue ubject to the authenticity of the discretion of the police scretion of a police officer #TBE 15. It is evident from the application E required to be searched was identified in informer produced before the learned M opinion on the basis of some material. The does not show that there was material of him believe that he must issue warrant produce the document or thing. The polic request for the production of a document no was for search of an unidentified house engaged in illicit sex. Production and arres equated with production of a document or a a cognizable case been registered he could h effected arrest of any person concerned is against whom reasonable suspicion existed offence. He could then be satisfied that search warrants. He allowed the application the informer which meant that he left it to officer. He abjured his duty in favour of d 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 informat on 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.
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(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 113 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 1(/17 years had undergone Shighar 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 ih 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
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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. (I) 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 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,…
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