2004 P Cr (PLP)

During my inspection of the judicial Hawalat Chicha Watni, Sub-Division District Sahiwal it came to my notice that Rabia Bibi young teenager girl had been arrested in case F.I.R. No.88, dated 21-3-2004 under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered with Police Station Saddar Chichawatni.

2. After perusal of. the F.I.R., it was found that case was got registered by one Fazal Ali with the allegation that at about 1-30 a.m. during the night between 20/21 March, 2004 he was going on the road in front of Baithak of Kashif, he overheard voice from inside, on which he called 'Abdul Rauf and Nadeem Raza and they peeped through the window and saw in the light of electric bulb that Kashif and Rabia were busy in committing Zina-bil-Raza with each other. They got the door opened. They took both into their custody and in the morning they produced them before Muhammad Jamil, S.-I. who recorded the instant F. I. R.

3. On finding the contents of the F.I.R. in violation of fundamental rights as guaranteed under Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973 which provides protection of privacy and inviolability of man and intrusion in any one's house in order to find out commission of act/crime which is in violation of Injunctions of Islam, I observed that this F.I.R. is liable to be quashed and directed the learned ASJ Chichawatni to admit the accused to bail. Resultantly the accused was allowed bail by the learned ASJ, Chichawatni vide order, dated 3-4-2004. By seeking support of Riaz v. Station House Officer PLD 1998 Lah.35 and Muhammad Bilal v. Superintendent of Police PLD 1999 Lah. 297, I summoned the record from the trial Court which has been produced before me by Muhammad Jameel Ahmad, S.-I. on 6-4-2004.

4. As the case pertains to District Sahiwal which fall under the territorial jurisdiction of Multan Bench, therefore, matter was placed before the Honourable Chief Justice soliciting necessary orders and the Honourable Chief Justice has fixed this petition before me.

5. Miss Nosheen Taskeen, Advocate was appointed amicus curiae at the State expense to assist this Court on behalf of the petitioner and in response to the notice issued to the complainant he is also present with the learned Law Officer.

6. The facts of the case are narrated by me in para. 2 and learned counsel for the petitioner has argued that the conduct of the complainant is violative of Article 14(1) of Constitution of Islamic Republic of Pakistan which reads as under:-- "The dignity of man and, subject to law, the privacy of home, shall be inviolable." and has placed reliance on Riaz v. S.H.O.. Police Station Jhang City and 2 others PLD 1998 Lah. 35, wherein in para. 20, it has been held that

"in short, for the purposes of this law and implementation of its provisions no room has been made for house search. The Federal Shariat Court has emphatically observed that the charges of Zina should not be casually brought to Court or publicized as it shatters the foundation of the family where female is accused in such a crime. It has been further held that "human weakness should rather be overlooked and ignored, unless committed at public place and becomes a cause of concern from the societies point of law (Ghulam Sakina v. State 1991 PCr.LJ 568). In para. 25, was also held that

no provision in the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 unlike some other special laws which permit the conduct of a raid in a house for the purpose of discovering and unearthing the commission of Zina therein. This Ordinance was enacted to implement the Islamic provisions in this behalf and rightly does not provide for an intrusion into anyone's house only to find out the commission of offence of Zina. In fact the Holy Qur'an prohibits such an act. He cited Abdullah Yousif Ali's translation' Surah An-Nur Verses 27 and 28, which ordain:-- "

27. O ye who believe: Enter not houses other than Your own, until ye have Asked permission and saluted Those in them: that is Best for you, in order that Ye may heed (what is seemly).

28. If ye find none In the house enter not Until permission is given To you; if ye are asked To go back, go back: That makes for greater purity. He further referred to Allama Yousuf Ali's own comments upon the Islamic concept of privacy of home. As compared to the Englishman' concept of exclusiveness, which is reflected in the old saying that an Englishman's home is his castle, is distinguishable inasmuch as it reflects privacy without exclusiveness and friendliness without undue familiarity. The concept of Purdah is inherent in the concept of privacy of home. Similar injunction is provided in Surah Al-Hujrat; Maulana Maududi in Tahfeemul Qur'an has interpreted it in following terms:- Learned counsel has further placed reliance on Muhammad Bilal and another v. Superintendent of Police, D.G. Khan and another PLD 1999 Lah. 297, wherein in concluding para. (para. 12), registration of a criminal case tinder sections 10 and 13 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the complaint was declared illegal, tainted with ulterior consideration, mala fide -and without lawful authority. Similarly in Abdul Qayum v. The State 1991 PCr. LJ 568 it has been held as under:-- "From the contents of these Verses it is clear that unless there are four eye-witnesses on the commission of the offence of Zina, no one should accuse any person of that and no publicity should be given to any act of obscenity even if a God fearing man hits at any such ugly scene. This is such a serious matter in Shariah that as mentioned in the above quoted Verses the Holy Qur'an has laid down that if anyone accuses another person without producing four. eye-witnesses, he will be punished with eighty stripes and his evidence will not be accepted in future."

7. Learned Law Officer keeping in, view the circumstances and after examining the case-law referred to by learned counsel for the petitioner has frankly conceded to the quashment of the F.I.R .

8. In view of the above, although it was registered as bail petition, but I feel that it will sheer wastage of time and abuse of process of Court of law if the F.I.R. remains in field, therefore, I allow this petition and order for quashment of case F.I.R. No.88, dated 21-3-2004 under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Saddar, Chichawatni, in exercise of inherent jurisdiction. N.H.Q./R-37/L F.I.R. quashed.