P L D 1992 Karachi 67 (PLP)

XXIV. Surat-un-Nur (219) SECTION 4 "27. 0 you who believe! do not enter houses other than your own until you have asked leave and invoked peace on their inmates. That is better for you; haply you may take heed. "

28. That if you find no one therein, do not enter until leave has been given you. And if you are told, go back, then go back. It is cleaner for you and Allah is knower of what you do." Commentary "The English saying that an Englishments home is his castle, suggests a certain amount of exclusiveness and defiance. The Muslim principle of asking respecting permission and exchanging salutations ensures privacy without exclusiveness, and friendliness without undue familiarity. Islam thus regards sudden and abrupt entry into another house or apartment as an act of incivility and indecorum since the person may be surprised in an indecent action or posture or may have something discovered which he would have liked to conceal." Next he referred to the Islamic Criminal Justice System by M. Cherif Bassiouni, Oceana Publications, Inc., London, Rome, New York, extracts from which may also be advantageously reproduced as under:-- "Thus, Islamic Law has established rules which meet society's need to protect itself from crime and ensure the right, of individuals whom God has honoured and favoured as His creation. in so doing Islamic Law restrains those who may violate the right to privacy, in particular those officials who could unreasonably search the dwellings of those suspected of involvement in criminal conduct. Consequently individuals, their dwellings, correspondence and property cannot be searched save according to certain requirements and restrictions provided by law. As to the inviolability of one's dwelling, the Quran state; O ye who believe; Enter not houses other than your own without first announcing your presence and invoking peace upon the people therein. That is better for you that you may be heedful ... and if you find no one therein, still enter. not until permission have been given, and if it be said unto you: 'Go away, for it is purer for you.' Allah knoweth what. you do. Thus, according to this text, entry into the dwelling is prohibited unless by consent of the owner. This prohibition is not limited to places actually occupied by the owner, it applies also to the owner's property during his absence. This is explicit in the verse cited above which precludes entry without "permission", and requires consent. The Sunna also is in accord, as seen from the Prophet s saying: Three things are not allowed to any man. No man who leads a group in prayer should invoke blessing solely upon himself, for if he does, he will have betrayed them. A man should not look inside a house unless he receives permission. If he does so, he would have entered, and a man should not say his prayers when he is congested unless he is relieved." The Prophet also states figuratively so as to illustrate the right to be free from intrusion into one's privacy that: If a person looks at you without your permission and you pelt him with a stone and put out his eye no guilt will be on you. This right, also extends to one's clothing in that no one has the right to inspect the clothing of another person to determine what may be concealed therein without reason and without permission. It thereby embodies the proscription against unreasonable searches of the person. The inviolability of the dwelling is linked with the inviolability of the person, for the latter derives from the former as a manifestation of individual freedom. It is meaningless to protect the house without protecting the owner as well." The inviolability of the dwelling is not based on a purely religious foundation; it is, also partly inspired by the social policy of protecting individual security and freedom in a manner which does not interfere with the right and duty of the State to take necessary action to investigate crimes. Thus under Islamic Law the inviolability of the dwelling is absolute but is subject to certain exceptions necessitated to maintain social order and safety." God says: "And spy not." This is because dwellings and individuals are immune (from infringement) unless the offence is apparent, and they should not be violated or encroached. Thus Sunna is also explicit on this issue. Islam from its very beginning has observed this rule as illustrated by the following incident. Omar Ibn al Khattab once found a group of men drinking wine and burning shacks. He said, "I have prevented you from drinking, but you have drunk. I have prohibited the burning of shacks, but you did." They said, "Prince of the faithful, God ordered you not to spy, but you spied. He ordered you not to enter without permission, but you did." Then Omar said, "These two to those two," and left without questioning them. Abd ul-Ralunan ibn Awf related another incident: Once at night I accompanied Omar on one of his wanderings at Medina. As we traveled we saw the light of a lamp. We went toward it. When we approached it, we found a locked door concealing some people noisily reveling. Omar took my hand and said., "Do you know whose home this is?" I said I did not. He said "it is the home of Rabiaa ibn Khalef. They are drinking. What is to be done?" I said, "I see that we did what God prohibited. God forbids us to spy. "Omar returned and disregarded them." In Islamic Jurisprudence by C.

6. Weeramantry, the notion of privacy is given in the following words: "THE NOTION OF PRIVACY: The Quran s enjoins, '0 ye who believe, avoid suspicion ... .. And spy not on each other, nor speak in of each other behind their backs" (XLIX:12) Modern law is giving increasing recognition to privacy as modern technology reveals new and powerful methods of denying this right. The common law was particularly slow to evolve a general concept of a right to privacy except in limited areas such as physical trespass and defamation. Islamic Law has some striking passages on privacy: The Qur'an (XXIV:27, 28) is very specific on this matter. '0 ye who believe : Enter not houses other than your own without first announcing your presence and invoking peace upon the people therein and if you find no one therein, still enter not until permission hath been given The prohibition extends likewise to correspondence, for in the striking words of the Prophet, 'He who reads a letter of his another without his permission will read it in hell' (Bassiouni 1982, page 69). Modern technology is perfecting ways of violating privacy by external surveillance without actually committing physical trespass. Scanners, electronic surveillance, telephone tapping and other methods of eavesdropping make this a very modern problem. The Islamic texts cover these situations as well for it is not only physical entry that is prohibited. 'A man should not look inside a house unless he receives permission. If he does so he would have entered (For references see Bassiouni, 1982 P.68). There is even a hadith to the effect that if a person looks at one without one's permission he is deserving of condign punishment the implication being that unauthorised non physical intrusions upon privacy are forbidden." I need not dilate upon. all the aspects of the case as presently I am dealing with the plaintiff's application for interim injunction under Order 39, Rules I and 2, C.P.C. Be that as it may be, it is to be seen whether it is a case of inviolability of the dwelling house or of its being linked up with the inviolability of the person of the plaintiff and other residents there including Muhtarma Benazir Bhutto. The case proceeds not from the apprehension of unauthorised entry into the plaintiff's house by the defendant N63 and others, rather, the fear revolves round the violation of privacy, which would be disturbed upon construction of multistorey building on the 'disputed property' and of adversely affecting the amenities such as electric, water and gas supply as are available in the area. The argument advanced by the learned counsel for the defendant No.3 that the plaintiff is a minor and a male and there would be no violation of his right as to privacy by the construction of a multistoreyed building does not appeal to me tenable, firstly, even a minor and a male is entitled to right of privacy and secondly, the right of privacy cannot be restricted to the owner of house but will extend to other family members living there, in whose favour a cause of action may accrue as wen independently. His next argument that Mrs. Benazir Bhutto is not a pardahnasheen lady and her right of privacy is neither practicable nor feasible is also not tenable. Right of privacy is the very basis of decent living and cannot be denied to any one whosoever. It is no more the bone of contention between the parties that the defendant No.3 has not obtained no objection certificates from authorities concerned for supplying water, electric and gas prior to the approval of the plan for the multistoreyed buildings after learned counsel for the defendant No3 made a categorical statement of having obtained them earlier in time. The grievance of the plaintiff however remains is that K.D.A. and K.B.C.A. in breach of the plaintiffs leasehold rights and in violation of the principles of natural justice had converted the residential area, into a commercial area, of which no prior intimation was given to the plaintiff or residents .of the area or the general public inviting objections to the proposed conversion. Further, the plaintiff's mother, Mrs. Benazir Bhutto, being the leader of the Opposition, is exposed to attack on her life which necessitated complete security and privacy. It may be stated here that the said scheme was finally approved by the then President of Pakistan on 5-12-1972, which was duly notified in the Gazette and the layout plan of the scheme was also published. However when Ms. Benazir Bhutto, the mother and next friend of the plaintiff purchased Plot No.D-30 on 27-10-1987 and gifted it away to the plaintiff, on 12-2-1988, and also when Plot No.D-29 was transferred by one Abdul Aziz to the plaintiff on 30-4-1988, the revised scheme of the area had already been in existence, for more than 15 years. Similarly, the 'disputed property' was initially allotted on 19-8-1976 to one Irshad Rao and its leasehold rights as a commercial plot were acquired by the defendant No.3, by a registered leasedeed dated 10-11-1988 from K.D.A. about three years before the institution of this suit. Although the plaintiff has relied upon is own leasehold rights, he has not produced lease in respect of any of the said two plots in order to show on what terms his said' two plots were granted by KDA. and how under them the rights of the plaintiff can be said to have been violated. What is placed on record by the plaintiff are the allotment letters relating to the said two plots. Nowhere the plaintiff has specifically pleaded the alleged privacy of home as 9 ,customary right' or has shown it as 'immemorial', reasonable and continued without interruption and certain in respect of the locality or the person'. Nevertheless, privacy of home, subject to law has acquired constitutional status and is an inviolate right under Article 14 of the Constitution of the Islamic Republic of Pakistan and must be zealously guarded by Courts of law. What further follows from the excerpts from- the Holy Quran, Sunnah and the Commentaries referred to above is that in a Muslim society the inviolability of a: dwelling house is essentially linked with the inviolability of the person, is absolute and even non-physical intrusion such as spying is forbidden. Although there is neither general nor specific allegation as to spying on Ms. Benazir Bhutto, the plaintiff has apprehended attack on her life. This apprehension is not unfounded, keeping in view the fact that she had been a former Prime Minister of Pakistan and presently the leader of Opposition in the National Assembly having a number of political -adversaries. It is the foremost duty of the Government to protect her life and to take all necessary measures for her safety. It may however be added here that even if there is one double storey . residential building in the vicinity this risk cannot be avoided. The admitted position however, is that there are a large number of multistoreyed buildings all around the plaintiffs house. in the circumstances, the privacy inside the house can perhaps be maintained by putting up curtains on doors and windows but any prohibitory order so as to ensure maintenance e of privacy and seclusion beyond the covered up area of the house into the passage, lawn etc. would neither be practicable nor justifiable. These are reasons for dismissing the plaintiffs application vide my short order dated 3-5-1992. AA./B-231/K Application dismissed.