P L D 1998 Lahore 35 (PLP)

The petitioner seeks to challenge both the vires of order of City Magistrate, Jhang issuing house search warrants on 23-2-1997 on the asking of Muhammad Ashraf, A.S.I. as well as the registration of FIR bearing No.38/97 pursuant thereto by the latter under section 10/13/14 of the Offence of Zina (Enforcement of Hadood) Ordinance No.VII if 1979 at Police Station City Jhang.

2. On 23-2-1997 Muhammad Ashraf, A.S.I. addressed an application to the City Magistrate, Jhang stating therein that one Naveed Akhtar resident of Chak No.464-GB, through written application had informed him that one Riaz (petitioner) was living in a rented place in Basti Rasoolpura near Lari Adda. He was deploying women from outside for the purpose of prostitution and was thus running the house as a brothel. If a raid were conducted many men and women indulging in free sex would be found there. It, was, therefore, necessary to raid the house and warrant be issued for the house search. On this application, the learned Magistrate without further probe, seemingly, in a mechanical manner, ordered for issuance of search warrant under section 98 Cr.P.C. in respect of the petitioner's house. It reads as follows:- DARKHWASSAT AAJ PESH HOI. MUAMLA FORI NOIAAT KA HAY JO ZANNA HUDOOD SAY MUTALIQ HAY. LAHAZA WARRANT TALASHI ZER-E-DAFFA 98- JARI KIAYA JAAYE. SIGNATURE MAGISTRATE

3. After obtaining the warrant the A.S.I. went to the house of the petitioner and at 1-30 p.m. despatched a " Maraasla" to the police station for Registration of a formal F.I.R. It was to the effect that he (Muhammad Ashraf, A.S.I.) alongwith five other constables was out on patrol duty when a Mukhbur informed him that Riaz son of Sher Muhammad, petitioner, had rented a house near bus-stand adjacent to Basti Rasoolpura. He was using the same as brothel and if a raid were conducted many men and women indulging in sex would be found there. Muhammad Ashraf, A.S.I. had laid this precised information before the Ilaqa Magistrate and the latter on 23-2-1997 issued search warrant of the house under section 98, Cr.P.C. Consequently raiding party was constituted accompanied by two witnesses from different localities i.e. Naveed Akhtar of Chak No.464 (the same person at whose behest search warrant had been sought) and Akhtar Abbas of Mohallah Hassan Nagar. The doors of the house were open. The raiding party entered the house and found Riaz and Mst. Kalsoom committing Zina in a room with doors wide open. Ashraf, A.S.I. arrested them both and arrayed them for offences under section 10/13/14 of the Zina Hudood Ordinance, 1979. FIR bearing No.38/97 dated 23-2-1997 was accordingly registered at Police Station, City Jhang and consequently challan under section 10/13/14 of Zina Hudood Ordinance, 1979 was also submitted. The District Attorney Jhang, however, referred it back to the Circle D.S.P. with an objection among others that he should explain that under what law the search warrant was obtained from the concerned Magistrate.

4. Riaz, accused/petitioner filed a bail application (Criminal Miscellaneous No.2757-B/97). This Court released him on interim bail primarily on the ground that ex facie issuance of search warrant by the Magistrate for house search was not strictly with lawful authority as the facts of the case did not fall within the purviews of section 98, Cr.P.C. and that Magistrate's order was violative of Article 14 of the Constitution of Islamic Republic of Pakistan, 1973.

5. Report was called in this behalf from both Superintendent of Police, Jhang as well as from the Ilaqa Magistrate. The learned Magistrate in his reply claimed that on the application submitted to him by Muhammad Ashraf, A.S.I., he was competent to issue warrant under section 98, Cr.P.C. for house search as information about commission of Zina fell within the scope of the phrase-"production of any obscene object" referred to in section 98, Cr.P.C. He further stated that he had dispensed with the initiation of inquiry as according to him such an exercise would have been time consuming and would have defeated the very purpose. He maintained that as he had issued the warrant in a bona fide manner with the sole object to eradicate a social evil and sought that lapse, if any, may be overlooked. Superintendent of Police, Jhang also supported th, conduct of his A.S.I. and reckoned that the same was bona fide and covered by the provisions of Criminal Procedure Code..

6. Riaz, accused/petitioner on being released on bail has moved this petition seeking therein that the warrant for house search be declared illegal, unwarranted, beyond the scope of section 98, Cr.P.C. and violative of provisions of Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 and be also held repugnant to the provisions of the Holy Qur'an and Sunnah. As a corollary thereto he seeks quashment of the F.I.R. registered under Zina Hudood Ordinance, 1979.

7. Rana Naeem Sarwar and Syed Zulfiqar Ali Bukhari, both the learned Assistant Advocates-General raised a preliminary objection that this Court in exercise of its writ jurisdiction could not interfere in police investigation and any order in the nature of quashment of F.I.R. would be a transgression of parameter laid down by the Hon'ble Supreme Court in the case of Brig. Imtiaz 1994 SCMR 2142 and Shanaz Begum's case PLD 1971 SC 677.

8. Learned counsel for the petitioner submitted that it can be shown to the Court that police action is mala fide and without lawful authority, and invoking of writ jurisdiction by him is absolutely permissible even according to the ratio of the above-referred decisions.

9. Mr.Muhammad Rafique Bajwa, Advocate, appearing as an amicus curiae stated that real issue in the case was the validity of the search warrant under section 98, Cr.P.C. This was a judicial act, open to scrutiny by this Court even under section 561-A, Cr.P.C. If the issuance of search warrant is held illegal, then as necessary consequence, registration of the F.I.R. under Zina Hudood Ordinance as a product of an illegal act will stand vitiated. He has relied on Mst. Akhtar Perveen v. The State (PLD 1997 Lahore 390) to canvass that law abhors registration of F.I.R. under Zina Hudood Ordinance on the information of pro bono publico, commonly described as a Mukhbar in our Vernacular. Referring to the conduct of A.S.I. Muhammad Ashraf, Mr.Rafique Ahmed Bajwa, as well as learned counsel for the petitioner pointed out that it smacks of malice and over-reaching. Before the Magistrate, the A.S.I. gave out that one Naveed Akhtar had laid information that Riaz petitioner was using his house as a brothel, whereas in the "Maraasla" he sent from the spot for registration of case, he indicated, that it was on a Mukhbar's information he had proceeded to obtain the search warrant and had joined Nadeem to witness the search. It was argued that had the A.S .I. been honest, after having acted as a first informant of the F.I.R., he should have passed on the investigation to some other police officer. Unfortunately the A.S.I., rather opted to become a Judge of his own cause

a conduct unbecoming of an upright Police Officer. Reliance is placed on Muhammad Ajmal v. The State NLR 1994 Cr.LJ

503. It was submitted that the A.S.I. was under a legal duty to comply with provisions of section 103, Cr.P.C. and co-opt respectables of the locality to vouch for the genuineness of the search. He made no effort in this behalf and instead co-opted two of his henchmen from different localities/villages including the one whom he had shown to have laid the information of commission of Zina in petitioner's house. It has also been pointed out that the A.S. I./Investigating Officer showed total disregard both for the provisions of section 52, Cr.P.C. which requires the search of woman to be made by another woman as well as Rule 25.22 of the Police Rules which prohibits the medical examination of a woman without a written order from a Magistrate. There is no cavil with -these submissions at the Bar. The conduct of the A.S.I. is certainly not above board and to say the least not at all commendable. His investigation surely smacks of malice both in law and fact.

10. I do not see why the safeguards set out iti Chapter 25.23 of the Police Rules are not applied with strictness to house search whether on police own initiative or pursuant to a warrant. Gazetted Police Officer supervising investigations and inspecting officers are under legal obligation to take disciplinary action against the Investigating Officer who carries out searches without sufficient justification. An officer who fails in the discharge of this obligation would himself pass for being inefficient within the framework of Efficiency and Discipline Rules relatable to his service and liable to be proceeded against as well.

11. The pivotal question before me is whether under section 98, Cr.P.C.. it was available to the Magistrate to issue a warrant for search of a house on the bleak hope that the Police Officer might be able to discover people indulging in sex. It does not need much of head scratching to reply this question in the negative. This section is obviously applicable only to search of house suspected to 'contain stolen property, forged documents, Bank notes/counterfeit coins, obscene objects, intended to be distributed or circulated etc. Power under this section can be exercised only where the Magistrate on information and after such inquiry as he thinks necessary has reason to believe that any place is used for deposit or sale of stolen property etc. There is no nexus between the provisions of section 98, Cr.P.C.. and warrant under challenge. It seems that the Magistrate issued the warrants without applying his mind to the lis before him and the language of the provisions of section 98, Cr.P.C. Learned counsel for the petitioner, learned Assistant Advocates-General and the amicus curiae were in total agreement that there was no provision in the Cr.P.C. to warrant issuance l of an order for search of a house on an incognito/anonymous information that Zina was being committed therein. Chapter VII(b), Cr.P.C. deals with searchl~ warrants. Section 96(i), Cr.P.C. provides that the Court may issue search warrants and the person to whom such warrant is directed may search. or inspect, in accordance therewith, provided the Court considers that the purposes of any inquiry, trial of other proceedings under this Code will be served by a general search or inspection. This provision is attracted (a) where an inquiry, trial or proceeding are already going on and (b) where the Court after applying its mind objectively, comes to a conclusion that such an intrusion is necessary for the purposes of such inquiry, trial or proceedings. Chapter VII(c) deals with a situation where warrant may have to be issued for discovery/search of a person wrongfully confined. Chapter VII(d) provides for safeguards against abuse of search warrant. Section 103, Cr.P.C. is of vital significance to render search proceedings both transparent and creditable. The provisions of this section, unfortunately are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(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 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. "

12. The only other provision in the Criminal Procedure Code which deals with House Search is section 165 falling in Chapter IV which relate to, Investigation. Here too, a police officer has to be seized of an investigation in the first place and in aid of same he has to have (a) reasonable grounds for believing that anything necessarily connected therewith is to be found in a place and (b) in his opinion same has to be obtained without undue delay, he may search or cause search to be made for such thing provided he first records in writing the grounds of his belief and specify in writing, so far as possible the thing for which search is to be made.

13. By no stretch of imagination, this section can be read to cover raiding of a house to surprise any person engaged in sex. It deals with search for a thin necessary for investigation where there is no time for taking out a warrant under section 96, Cr.P.C. Here also, compliance with requirements laid down in section 103, Cr.P.C. is rendered mandatory.

14. In Masood Qureshi's case PLD 1971 Lah. 678 this Court took the view that a Magistrate cannot issue search warrant under section 96, Cr.P.C. unless he examined the complainant. It is further held that there must be some material available to a Magistrate to which he must apply his mind before issuance of search warrant and where he does not apply his mind such an order would certainly stand vitiated. This view also finds support from Indian case-law: S. Sinagurunatha Pillary

11. Cr.L.I 535; and Hari Gharan Gorai and others v. Srish Chandra Sadhukhan (11 CI.L.I 525). The application of mind, of course, can be only judged from the reasons given. However, in a decision.from Indian jurisdiction reported as Manichlal Mondal and another v. The State AIR 1953 Cal. 341, it is observed that the Magistrate is not bound to record his reasoning in writing before the issuance of search warrant. All that the section requires is that Magistrate must himself be satisfied that there is necessity for search warrants to be issued because the thing required would not- be produced otherwise. On the contrary in Piyare Lal v. Thakar Dat Sharma (32 IC 652), it was held by the former Punjab Chief Court that the search warrants issued by the Magistrate without giving reasons would vitiate the proceedings under section 96, Cr.P.C.

15. In Masood Qureshi's case (supra) this Court disagreed with the view of the Punjab Chief Court and adopted the view of Calcatta Court. I reckon that the view of the Punjab Chief Court is based on good reasons. Where application of mind is insisted upon by law, reasons have to be given to demonstrate application of mind. Non-giving of reasons by a Magistrate before issuance of warrants would therefore, vitiate the order in the same manner as nonapplication of mind would.

16. Another view advanced by Calcatta High Court was that it was not necessary that there should be inquiry, trial or other proceedings pending at the time when the search warrant was issued. The Magistrate could use his power under this law in anticipation of such'an inquiry or trial. Dacca High Court, also ascribed to the view that no proceedings or inquiry for an offence need not be pending for issuance of search warrant 1969 PCr.LJ

710. Earlier too, in Abdul Halims's case PLD 1968 Dacca

229. Dacca High Court took the view that no proceedings or inquiry need be pending at the time of issuance of warrant.. The warrant may be issued for the purpose of inquiry about to be made provided it is an inquiry under the Code. It seems that Dacca High Court in this premises, was influenced by the decision given by Bombay High Court in Mahomed Tahir's case AIR 1934 Bom. 104.

17. With utmost respect I find it difficult to ascribe to this view. Issuance of house search warrant, after all, makes an inroad into the Constitutional guarantee of fundamental right of privacy of the home. Enjoyment of this right, no doubt has been made subject to law; but at the same time it has been described as inviolable. To give true meaning to the word invoilable, the laws relatable to this right have to be given a strict construction rather than a loose and liberal interpretation, so that this right is honoured in preservation rather than being whittled down. It may not be out of place to mention, that at the time when the Courts gave the aforementioned pronouncements; Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 incorporating fundamental right of invoilability of dignity of man and privacy. Provisions of Cr.P.C. therefore, have to be read in the back drop of Article 14 of the Constitution of Islamic Republic of Pakistan, 1973. Para. 3 of section 96, Cr.P.C. reads as follows: "Where the Court considers that the purposes of any inquiry, trial or other proceeding under the Code will be served by a general search or inspection. it may issue a search warrant

i.e. search warrant can be issued only for facilitating an inquiry, trial or proceedings and to render such inquiry, trial or proceedings more meaningful. There has, therefore, to be a pre-existing inquiry, trial or proceedings under the Code to justify issuance of search warrant in respect of a house.

18. In this view of the matter, even if warrant had been issued under section 96, Cr.P.C. the same as far as the case in hand is concerned would have been without lawful authority and beyond the scope of this provision. Wherever Legislature feels that a law cannot be effectively enforced without providing for house search, it is so provided with requisite safeguards set out in Cr.P.C. referred to hereinbefore. Searches, for instance can be held under (a) Foreign Exchange Regulation Act, 1947 (section 19), (b) Arms Act, 1965 (,sections 21 and 24), (c) Copy Right Act, 1914, (d) Prevention of Gambling Act, 1977 (section 8), (e) Sea Customs Act, 1878 (section 172), (f) Customs Act, 1969 (g) Income-tax Act, 1922 (section 132) and (h) Opium Act, 1898 sections 18 and 19).

19. The list is by no means exhaustive. One may refer to with advantage to the Prohibition (Enforcement of Hadd) Order, 1979. According to its preamble, this law is enacted to bring the existing laws relating to prohibition of intoxicants in conformity with injunction of Islam. Criminal Procedure Code has been made to apply mutatis mutandis in respect of cases under this law, but at the same time special provision has been made for issuance of search for the purposes of this Act (section 22). On the other hand, Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 also enacted to modify the existing law relating to Zina to bring it in conformity with the Injunction of Islam as set out in the Holy Qur'an and Sunnah, there is no provision warranting search as in the case of Prohibition Order. Similarly some provisions of Cr.P.C. have been made specifically made applicable, but the provisions of Chapter VII having bearing on searches have not been incorporated either, through legislation by reference. , 20 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 places and becomes a cause of concern from, the societies point of view. (Ghulam Sakina v. State 1991 PCr.LJ 568).

21. On the issue that such laissez faire would most likely promote promiscuity, immorality and prostitution, the learned amicus, pointed out social evils are best curbed by social pressures, character building; education and by drawing people into acceptance and adoption of Islamic values and Muslim Culture. All the same, he pointed out that there is no legislative vacuum to cope with such evils. The West Pakistan Suppression of Prostitution Ordinance, 1961 provided for imposing strong checks on prostitution and running of brothels. Under this law, however, also power of search is restricted and exercisable only by a gazetted police officer and that too, under warrant issued by a District Magistrate. Even if one were examine the vires of the impugned warrant and its execution in the light of sections 13 and 14 of the West Pakistan Suppression of Prostitution Ordinance, 1961, the same is not sustainable either. This Court, way back in 1968 struck down the arrest made by as Sub-Inspector under this law and held that such officer had no authority even to arrange a raid by way of a trap (1968 PCr.LJ 97).

22. Mst. Kalsoom co-accused with the petitioner, mother of four children, appeared and presented affidavit claiming therein that the raid was totally fake and in fact she had been arrested from the bus-stand where she was waiting for the bus as she had come to the town to fetch medicine for her ailing child. She has also presented photostat copies of two decisions of Federal Shariat Court:- (a) Mst. Ehsan Begum v. The State PLD 1983 Federal Shariat Court 204) held that semen of the accused with swabs are prerequisite to carry conviction under section 10 of the Hudood Ordinance, 1979 in the case of married woman. It was also observed therein:- "That the police investigation in this country is not keeping pace with scientific developments. If facilities for grouping of semen be available, as indeed they are, it is not understandable why the Medical Officers examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina or Zina-bil-jabr. The police officers in their reference to the medical officers should also in such cases invariably request the doctor concerned to take the specimen of semen of the male accused. They should send them for chemical examination and serology alongwith vaginal swabs and clothes/cloth etc. having seminal stains. Copies of the judgment be sent to the Secretary Interior, Secretary Department of Law, Home Secretaries and the Inspectors-General Police of the Provinces. " (b) Abid Saved alias Mithu v. The State 1996 PCr.LJ (FSC) 1161, where it was held; "that where semen of accused not sent to Serologist for semen grouping, semen found on vaginal swabs was of no evidentiary value."

23. In this case there was also reiteration of directive to the police functionaries for semen grouping. She has, thus, joined in the prayer for holding house search illegal for quashing the case for non-compliance with the above directive of the Federal Shariat Court.

24. The learned Law Officer was appraised of these two decisions. He checked up with Home Secretary and submitted that the instructions for compliance with these decisions of the Federal Shariat Court had already been circulated to all the District Heads of the Police to ensure compliance.

25. Expounding the scope of the fundamental right relatable to invoilability of dignity of man and privacy of the home, Mr.Rafique Ahmed Bajwa, submitted that with incorporation of Article 2-A in the Constitution of Islamic Republic of Pakistan, 1973, a constitutional guarantee has been offered to all the Muslims in Pakistan that they shall be enabled to order their lives both in individual and collective spheres in accordance with the teaching of Islam as set out in the Holy Qur' an and the Sunnah. Every citizen has been rendered entitled to the basic freedoms and rights enunciated by Islam. Reading of Article 2A together with Article 227 of the Constitution, all State laws and acts of State functionaries have to be examined on the touchstone of the provisions of the Holy Qur'an and Sunnah. Wherever they appear to be incongruous or repugnant, they have to be struck down by the Courts of the country. Alluding to the case in hand, the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 is an Ordinance to bring in conformity with the Injunction of Islam, the law relating to the offence of "Zina". He pointed out that there is no provision in the Offence of Zina (Enforcement of Hudood) Ordinance NoNII 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 any one'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's 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.

26. Similar injunction is provided in Surah Al-Hujrat:

27. To derive home the true interpretation of this Qura'nic Verse that right of privacy of home is inviolable and absolute, Maulana Maududi refers to the incident of Hazrat Umar and his entry into someone house even though in aid of enforcing law was taken as unwarranted intrusion:

29. Mr.Rafique Ahmed Bajwa, also referred to Article 230 of the Constitution of Islamic Republic of Pakistan, 1973 which deals with functions of the Islamic Council. Primary being to make recommendations, as to the measures for bringing existing laws into conformity with the injunctions of Islam and to compile guidelines for the Parliament in this behalf.

30. In discharge of the function, council has issued publication captioned as "Eh-Kame Islam. For the purposes, of case in hand, he referred to Item No. 116 relatable to inviolability of dignity of man. It is ordained in Surah Bani-Israel: As God himself bestows dignity on man, the same is rendered inviolable and under no circumstance can it be taken away. Article 14 of the Constitution of Islamic Republic of Pakistan, 1973, in fact, has adopted this verse of the Holy Qur'an. Sanctity of home is also traceable to the Injunctions of HOI)- Qur'an For instance in Surah Al-Nahr God ordained:-

31. Another question which has cropped up in this case is that could a case be registered under Zina Hudood Ordinance, on the report of Mukhbar. There was again a consensus statement by both by the learned counsel for the petitioner learned counsel for the State and amicus curiae that law does not permit it, because the Offence of Zina Hudood Ordinance has to be read in conjunction i~ with the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979. Mukhbar being entitled to have his name and identity kept secret, this would allow him to even make false imputations of Zina with impunity. This would defeat the very spirit and purpose of both enactments. Such an act would not be in conformity with the spirit of Surah Hujrat, Ayat-6, and guidelines provided by the Holy Qur'an in this behalf.

32. In Surah Al-Hujrat Verse No.6 it is observed as follows:- The Qur'an prohibits to act at random statements without proper care and sanctity.

33. The irresistible inference is that the common practice of the police to register cases under Zina Hudood Ordinance on the report of Mukhbar is totally unwarranted and Injunctions of Islam.

34. It is difficult to countenance the clandestine and spurious manner in which law has been put into motion in this case. Both injunctions of Islam and the law of the land are intended to protect and preserve Fundamental Right of the Dignity of man and Privacy of his Home. Both the concepts have to be read conjunctively. Privacy of home after all, also enshrines dignity of man. It may be noted that the word 'inviolable' has been used in the Constitution in respect of this right particularly. Violation of the privacy of one's house through arbitrary intrusion by the police, without authority of law is certainly condemnable being repugnant to the concept of the human rights relatable both the dignity of man and privacy of the home. American Courts have protected this right by holding that the search warrant can only be issued on probable cause supported by statement on oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

35. In Spinnelli v. United States 393 4.S. 410 (1969, the American Supreme Court held that the anonymous tip was not acceptable as probable cause even though it has been corroborated by a detailed FBI affidavit.

36. It is regrettable that in the case in hand Magistrate issued warrant in a mechanical manner without application of mind and without even a prior perfunctory inquiry.

37. In common law too, man's home is described as his castle a concept close to fundamental right set out in Article 14 of cur Constitution. It can be best explained in the Words from Famous Speech of Willian Pitt over the Excise Bill:- "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake the wind may blow through it; the storms may enter, the rain may enter, - but the King of England cannot enter, all his force dare not cross the threshold of the ruined tenement. "

38. Before I close, I must acknowledge the most knowledgeable assistance of Mr.Rafique Ahmed $ajwa Mr. Shaukat Rafique Bajwa and Rana Naeem Sarwar and Syed Zulfiqar Ali Bukhari, learned Assistant Advocates-General also rendered a commandable help to the Court.

39. Resultantly, this writ petition is accepted. The issuance of warrant by the Magistrate is held to be illegal and unwarranted and without lawful authority. The subsequent action of the police in the nature of registration of F.I.R. also stands vitiated. Where the basis of a measure is illegal and unlawful, the superstructure is bound inherit the same defect and cannot be allowed to be sustained. F.I.R. bearing No.38/97 dated 23-2-1997 is, thus, also quashed. There will be no order as to costs. N.H.Q./R-43/L Petition accepted.