2005 PLP 3193 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

Through the instant writ petition the petitioner seeks quashment of F.I.R. No. 170 of 2005 dated 21-4-2005 registered with Police Station, City Chishtian under section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979.

2. The facts briefly stated are that on a tip off that petitioner along with one Mst. Asiya alias Ayesha Shahzadi were busy in enjoying happy hours by committing Zina -bil-Raza in a rented Room No.3 of Gulistan Hotel situated in Chishtian, Muhammad Hanif, A.S.-I. (since dead) raided the said premises in the company of other police officials on 21-4-2005 at about 11-55 (mid-night) and by entering the said room without any warrant arrested them red handed committing Zina. In consequence thereof, the instant F.I.R. was registered by said Muhammad Hanif, A.S.-I.

3. Learned counsel for the petitioner by placing reliance on the judgment of this Court in the case of "Riaz v. Station House Officer, Police Station, Jhang City and 2 others" PLD 1998 Lahore 35 has sought quashment of the said F.I.R., alleging that neither the said case could be got, registered on a Mukhbar's report nor the Mukkhbar was entitled to have his name kept secret as the same would allow him to even make a false statement with impunity which would defeat the very spirit and- purpose of Offence of Zina (Enforcement of Hudood) Ordinance VIII of 1979 as well as the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979. Learned counsel argues that the complainant had no legal authority to have conducted the raid as the same was violative of privacy of the petitioner as well as of fundamental right of privacy protected by Article 14 of the Constitution; that arbitrary and unbridled authority of police officer to enter anybody's premises on the basis of mere suspicion was neither recognized by law nor can be allowed, without warrant authorizing him to enter the house as permitted under section 103, Cr.P.C. It is further contended that in terms of sections 96, 98 and 165, Cr.P.C. even the Magistrate has no jurisdiction to issue search warrant in an arbitrary manner and without proper application of mind as well as disclosing sufficient ground for the issuance of search warrant but in the instant case it has been admitted even by the S.H.O. in his comments that no warrant was obtained from the Ilaqa Magistrate before raiding the room of the said Hotel. The learned counsel has also sought Constitutional protection guaranteed by Article 14 of the Constitution, in the light of judgment of the Honourable Supreme Court in the case "Mohtarma Benazir Bhutto and another v. President of Pakistan and others" PLD 1998 SC

388. The learned counsel has further placed reliance on the case "Mst. Rabia Bibi v. The State 2004 PCr.LJ 1451 and unreported judgment passed on 20-4-2005 in Writ Petition No.3880 of 2004 by my learned brother Sh. Abdul Rashid, J.

4. On the other hand, the learned Law Officer has conceded the fact that raid was conducted without obtaining warrant from the Magistrate and that the act of the police officer cannot be condoned on the excuse of want of time as submitted by the respondent in his report and parawise comments.

5. I have considered the arguments of learned counsel as well as the learned Law Officer, perused the available record and have also gone through the law cited by the learned counsel for the petitioner.

6. Before proceeding further, suffice it to reproduce the following paragraph from the judgment of the Honourable Supreme Court in Benazir's case PLD 1998 SCMR 388:-- "Article 14 guarantees to protect dignity of man and the privacy of home which shall be inviolable subject to law. This provision providing for the dignity of man as a Fundamental Right is unparalleled in the Constitution and hardly Constitutions of few countries provide for it. Dignity of man is not only provided by our Constitution, but according to our history and belief, under Islam great value has been attached to the dignity of man and the privacy of home. If a person intrudes into the privacy of any man, pries on the private life, it injures the dignity of man, it violates the privacy of home, it disturbs the peace and tranquility of the family and above all it puts such person to serious danger of being blackmailed. Such acts are not permissible under law and if any occasion arises for such operation, then it can be only in cases of defence and nationalsecurity." The above mentioned paragraph clearly guarantees the protection of dignity of man and privacy being inviolable right of course subject to law. In this paragraph subject to law means, in the present case the provisions relating to issue of search warrant by the Magistrate in terms of sections 96, 98 and 165, Cr.P.C., which not only make out grounds for issuance of such warrants but also provide procedure to be followed by the Magistrate while issuing search warrants. The celebrated judgment on the interpretation of above mentioned provisions of Criminal Procedure Code, rendered by my learned brother Dr. Khalid Ranja, J. (as his Lordship then was) in PLD 1998 Lahore 35, not only elaborates the different aspects, of the Hudood Laws read with Code of Criminal Procedure but also discusses the various situations when the Magistrate can issue search warrants and also the procedure to be adopted by the Magistrate while issuing search warrants. The above mentioned judgment not only is based on true interpretation of Article 14 of the Constitution as well as sections 96, 98 and 165, Cr.P.C. but also gives in depth analysis of Muslim Law as recognized by Qur'an and Sunnah of Holy Prophet (p.b.u.h). His Lordship in paras.25 to 32 of the said judgment has also made reference to Articles 2-A and 227 of the Constitution on the touchstone of provisions of Holy Qur'an and Sunnah and also the ultimate object of Hudood Laws. I while fully agreeing with the law declared in the cited judgment, have no other option but to allow this writ petition declaring the registration of F.I.R. No.179 dated 21-4-2005 under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance VIII of 1979, Police Station, City Chishtian, as without lawful authority and of no legal effect, the same is accordingly quashed. N.H.Q/M-1126/L Petition accepted.