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Petitioner: Mst. SHEHNAZ alias ASMA and another VS Respondent: STATE
Court Name: Federal Shariat Court Judge(s): Syed Afzal Haider Title: Mst. SHEHNAZ alias ASMA and another vs STATE Case No.: Crl. Appeal No, 142/L of 2005 Date of Judgment:2008-11-14 Reported As: PLJ 2009 FSC 334 Result: Appeal accepted
JUDGMENT
JUDGMENT Introduction Mst. Shahnaz alias Asma alias Rani and Mst. Naila alias Shamim have through this appeal challenged the Judgment dated 28.04.2005 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 06.05.2005. On 24.10.2008 the husband of appellant Mst. Naila informed the Court that his wife had expired on 30.09.2006. Death Certificate of Mst. Naila, as directed, was placed on record and it was ordered that the appeal insofar 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, 33/2001, Ex.P-G/1) registered on 25.01.2001 with Poll Station Kot Chutta on the basis of a "Murasala" (written intimate of PW-7 Ijaz Hussain Bukhari Inspector, who is the complainant ii. 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 PW-7, he was present at Chowk Saleemabad alongwith 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
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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 Maga 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 Zuffiqar (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 frum 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 09.02.2004. 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 PW-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 wore 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) PW-2 Dr. Abdul Rehman, medically examined Muhammad Akram and Fida Hussain to ascertain their potency and found them fit to perform sexual act. (iii)PW-3 Fayyaz Ahmad, Head Moharrar drafted F.I.R. Ex.P-G/1 on receipt of "Murasala", Ex.P-G, written and sent by Ijaz Hussain Bukhari, Station House Officer PW-7. (iv)Muhammad Ajmal appeared as PW-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 PW-5 was member of the raiding party. He supported the version of the complainant PW-7. He admitted that no respectable person of the locality was associated at the time of raid at the place of occurrence. (vi)PW-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 PW-7. She testified four recovery memos. (vii)PW-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:--
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(a) Fida Hussain accused stated that "PW Muhammad Ajmal is a so-called journalist and black mailer. A dispute of land is going on between me and said PW. 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 PW alongwith 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 PWs 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. PW Muhammad Ajmal has a 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 PWs 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 alongwith other co-accused were going to Jampur for participating in a marriage ceremony. All the PWs 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 with mala fide by the local police. All the PWs 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. PW 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 alongwith other accused except Zulfiqar reached at Kot Chutta for participating in a marriage ceremony at Jampur, suddenly PW Muhammad Ajmal came there on a Dala alongwith 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 PWs 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 DPG 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,1150/- was allegedly recovered from five accused which
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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 PW-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)PW-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 Ex.P-C is the report of the Chemical Examiner which states that one Ghulam Haider 266/C delivered on 14.02.2001 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 PW-7 on 25.01.2001 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 monoy from them". On receipt of the said information he proceeded for procuring search warrant and moved an application Ex.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 25.01.2001 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 from 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, 1 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 PW-7 after taking so many steps drafted complaint Ex.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-plan of the place of occurrence and sent the female accused for medical examination. 15. It is evident from the application Ex.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
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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 as 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 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 Ex.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 worth noting 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 an 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:
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(a) In the case of Niamat Chacha Kata versus Summary Military Court No, 2, Lahore reported as PLD 1979 Lahore 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 versus 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 marriage i.e the wata or exchange marriage as her brother A.D. was married to the sister of her husband A.B. 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. LB 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 Hon'ble 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 alongwith 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 house of a perosn 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 Versus 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 de so. (e) The Federal Shariat Court in the case of Ashiq Hussain Versus 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 versus Station House Officer reported as PLD 1998 Lahore 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 Versus Superintendent of Police reported as PLJ 1998 Lahore 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 Versus Station House Officer reported as 2001 PCr.L.J 685 some guidelines were given for the Magistrates which have not been followed in the case under
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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 ease is whether the constitutional guarantee stipulated in Article 14 could be violated without recourse of law. It is worth noticing 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 Vs. State and the two others Full Bench cases on which the Hon'ble Judges of the Federal Shariat Court relied. The case of Ghulam Muhammad Vs. 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 Quran 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 Quran ordains as follows:-- O you who believe! avoid most of suspicion, for surely suspicion in some cases is a sin,…
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