P L D 1999 Lahore 297 (PLP)

5. On the other hand the learned Additional Advocate-.General has submitted that as the F.I.R. has been registered, the petitioners should give their defence before the Investigating Officer and if the case is found false, the Investigating Officer shall move for cancellation of the case. 6.I have given due consideration to the valuable arguments on both the sides and perused the record with their able assistance. 7.There is no cavil with the proposition that ordinarily an F.I.R. is not to be quashed and the police should complete its course of investigation and submit a report under section 173, Cr.P.C. but in a case like this where there is no evidence on which conviction could be passed and where there is enmity admitted on the record through criminal cases, and there is gross violation of the law contained in sections 103 and 165, Cr.P.C. and also ignoring the law contained in the Holy Qur'an and Sunnah in Surah Al-Noor and Surah AlHujurat, this Court can in extraordinary circumstances take notice of the grievance and redress it. The relevant provisions of law are reproduced for ready reference:- "Section

103. Search to be made in presence of witnesses.--(1) Before making a search under this Chapter, the officer or other person about to make it. shall 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 may issue an order in writing to them or any of them so to do. (2) The search shall be made in their presence, and a list of all things seized in the course of search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request. (4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5)Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code. " "Section

165. Search 1y Police Officer.--(1) Whenever an officer incharge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an 'investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station: Provided that no such officer shall search, or cause search to be made for anything which is in the custody of bank or banker as defined in the Bankers' Books Evidence Act, 1891 (XUIII of 1891) and relates, or might disclose any information which relates, to the bank account of any person except- (a) for the purpose of investigating an office under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477-A (both inclusive) of the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge; and (b) in other cases, with the prior permission in writing of the High Court. (2) A Police officer proceeding under subsection (1) shall, if practicable, conduct the search in person. (1) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time he may after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and' he shall deliver to such subordinate -officer and order in writing specifying the place to be searched and, so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. (2) The provisions of this Code as to search warrants and the general provisions as to searches contained in section 102, section 103 shall, so far as may be, apply to a search made under this section. (3) Copies of any record made under subsection (1) or subsection (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate: Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost."

8. This section empowers the police officer specified to make a search without warrant subject to certain safeguards. The prerequisites for a search as per this section are that: (i) Search must be necessary for investigation. (ii) The offence must be such as the police officer is authorised to investigate, i.e. a cognizable offence. (iii) Reasonable grounds must exist for believing that the thing required wilt be found in a place. (iv) There would be undue delay in getting the thing in any other way. (v) Grounds of belief as to necessity of search must be previously recorded by the police officer. These conditions must be fulfilled and there should be no misuse of the power nor there should be any harassment. The perusal of the section also leaves no doubt that it does not apply when search is for arrest of the accused. The search envisaged by this section is to be made for a specified thing. A person is not a thing. In the case of Ashiq Din etc. v. The State PLD 1968 Lah. 1425 where police did not record in writing in Roznamcha grounds for making search of the house of the accused, it was held that it was without jurisdiction and bad in law.,

9. Sections 10, 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are reproduced as under:-- Zina or Zina-bil-Jabr liable to Ta'zir.--(1) Subject to the provisions of section 7, whoever commits Zina or Zina-bil-Jabr which is not liable to had, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of Qazf liable to hadd has not been awarded to the complainant, or for which hadd may not be enforced under this Ordinance, shall be liable to ta'zir. (2) Whoever cofimits Zina liable to ta'zir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine. (3) Subject to subsection (4), whoever commits Zina-bil-Jabr liable to ta'zir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty-five years and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping numbering thirty stripes. (4) When Zina-bil-Jabr liable to ta'zir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death. "

13. Selling person for purposes of prostitution, etc.--Whoever sells, lets for hire, or otherwise disposes of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine. Explanations.--(a) When a female is sold, let for hire, or otherwise disposes of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female, shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. (b) For the purposes of this section and section 18, 'illicit intercourse' means sexual intercourse between persons not united by marriage. " ?

14. Buying person for purposes of prostitution etc --Whoever buys, hires or otherwise obtains Possession of any person with intent that such person shill at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine. Explanation.--Any prostitute or any person keeping or managing brothel, who buys, hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution. "

10. Article 14 of the Constitution is also relevant in this case which reads as under: -

14. Inviolability of dignity of man etc.--(1) The dignity of man and subject to law, the privacy of home, shall in violable. (2) No person shall be subjected to torture for purposes of extracting evidence.

11. Privacy of home is protected by this Article but this protection is subject to law. If, therefore, law permits an official to enter a house as, for example for the purpose of making an arrest or to make a search, there would be no violation of the Article. Eavesdropping, tapping, stealthily or photographing something inside the house are invasions of privacy. Sections 10, 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 165, Cr.P.C. do not envisage the search of a house to search for a person. This Court in the case of Riaz v. S.H.O. PLh 1998 Lah. 35 has held that there is. no provision in Cr.P.C. to warrant issuance of an order for search of a house on an incognitio/anonymous information that Zina was being committed. It was also held in the said case that common practice of police to register cases under Zina Hudood Ordinance on report of Mukhbar is totally unwarranted and against the Injunctions of Islam.

12. In this view of the matter, crime case bearing F.I.R. No.404 of 1998, dated 3-8-1998 at Police Station Dera Ghazi Khan under sections 10 and 13 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the complaint of respondent No.4 is declared to be illegal, tainted with ulterior consideration, mala fide and without lawful authority and as such, the same is quashed in exercise of the Constitutional jurisdiction. N.H.Q/M-993/L Order accordingly.