Present: MUHAMMAD NASEEM CHAUDHHI, J. NOOR
S.H.O. POLICE STATION, KLUR KOT, DISTT. BHAKKAR and 4 others
W.P. No. 1915 of 1998, decided on 3.11.1999. , obviously the wisdom behind is to restrain the Police from working in anj ^ autocratic manner as the accused can be admitted to bail by the Police and iff produced before the Court, by it immediately as of right of the accused as contemplated under Section 496 of the Code of Criminal Procedure. It shall have also to be analysed as to whether taking of meals at Chah Gulbazwala by the absconder accused with his father (writ petitioner) allegedly seen by the complainant of the murder case comes within the purview of the words harbour or conceal as used in Section 216 Pakistan Penal Code. The dictionary meanings of the word Conceal are: keep secret to hide completely or carefully, act or state of hiding. The dictionary meanings of word harbour are: place of safety, or refuge or shelter, asylum. It is not narrated in the comments/report submitted by the respondents (Police) that in whose house the absconder accused was having the meals at Chah Gulbazwala. It is a matter of common knowledge that on one named Chah there are many houses of one Abadi. It cannot be expected that Abdus Sattar being Absconder accused would be provided meals openly by his father about whom he has got published a notice of disinheritment in daily Nawa-i-Waqat Lahore on 3.7.1997 while this writ petition was filed on 4.2.1998. Further there being no specification of the house in the comments/report wherein the meals were taken by Abdus Sattar absconder in the company of his father Noor Muhammad writ petitioner; the allegation of harbouring and concealment can well be termed to anomalous and prima facie without substance. Thus it can be expressed that the aforesaid type of allegation made by the complainant of the murder case does not come within the ambit D of the words harbour or conceal used in Section 216 Pakistan Penal Code. The SHO Police Station Kalur Kot District Bhakkar seems to have proceeded in routine for wrongful gain to put the pressure on Abdus Sattar absconding accused for his surrender as the petitioner and other female members of the family shall be humiliated and disgraced.
6. -The only irresistible conclusion which can be drawn from the aforesaid state of affairs and discussion would be that the contention of the writ petitioner is correct that all has been done to harass him and other family members to put the pressure for the surrender of the absconding accused Abdus Sattar. In this regard the taking of the petitioner and his family members to Police Station Kalur Kot and adopting third degree methods cannot be ruled out. Consequently the respondents are restrained from harassing and insulting the petitioner and his family members in any manner with respect to the offences/mis-deeds committed by Abdus Sattar absconder.
7. In the circumstances it is proper to examine case FIR No. 216 registered on 14.9.1997 under Section 216 Pakistan Penal Code at Police Station Kalur Kot, District Bhakkar. The Judicial File and Police File shall be requisitioned from the concerned quarters regarding which the separate order has been passed for compliance by the office.
8. It is important to note that the learned counsel for Noor Muhammad writ petitioner canvassed that such type of allegations/ assertions are being raised/made by the public against the police in different matters and it is in the fitness of the things that some authoritative view is enunciated by this Court. I agree with him. I feel that it is a matter wherein complete analysis, appreciation and dissection is made because the same would be a source of protection and convenience for the citizens being that of Public interest litigation. It is a common complaint these days that without any hesitation, without legal justification and just in routine the police has made it a practice to enter the houses of the citizens and in such like cases the family of the absconder accused is vexed and taxed by making entry in the house without permission under the garb that the absconding accused is present there. Even the females are insulted by putting different questions to them. Practically the family members viz.; children, old or young, males or females, married or unmarried etc. are called at the Police Station who are made to sit there in a disgraceful manner upon whom the insult is showered by different third degree methods who are also administered shoe beatings publicly and in the Police Station. Even the threats of murder in fake police encounters are issued and rather the accused or bis relatives are also eliminated in staged encounters also termed/known as Street Justice Method. Muss fuss emanates amongst the citizens against such type of working of the police which is creating big gulf between the public and the police which is not a happy sign towards the maintenance of positive texture of the society being against discipline whereby the respect of the UNIFORM of the Police Department is diminishing and decreasing which fact is also proving to be a conspicuous cause for the worsening of the law and order situation. Further the damage to the image and prestige of the police Department done in this manner becomes incalculable. I would express the view that the litigation of every type including the one in hand is not ths luxarious hobby of the citizens wherein sufficient fee is paid to the learned advocate(s) and the amount has to be spent on the preparation of the brief or making the journey etc. etc. It is only and only at the time when the shoe pinches the wearer that such type of writs are filed. Without prejudice it can safely be expressed that the nafarious acts/mis-deeds of a disobedient member of a family should not be a source of inconvenience, harassment and insult to the other family members and that also at the hands of the Disciplined Force of Police.
9. Justice in one sense or the other lies at the foundation of every human society, however., more or less civilized it may be. Justice has not to be provided by the Courts only. The scale of justice has also to be kept in the correct manner by all the pillars and Departments of the State. In the criminal administration the correct and fair investigation is the foundation of justice. If any Department does not act in accordance with law and plays the pan in the negative manner, the Judiciary has to play the important role in the Constitutional Jurisdiction. Islam signalized a momentous development in the affail’s of mankind. Clashes of interests lead to actions that disturb the sociai balance. To bring the society back into a state of equilibrium, some sort of machinery has to be evolved for administration of justice which primarily aims at maintaining a balance between the rights of individuals or groups, Obviously the Judiciary has to play its role at such a juncture. With this background I have thought it. proper to tackle the dispute in hand and to give my findings keeping in view the religious commands, moral values as well as the Constitutional and statutory safeguards provided to the citizens of Pakistan.
10. I feel that it is matter wherein complete analysis, appreciation and dissection of the matter is made because the same would be source of protection and convenience to the petitioner and the general public/citizens. This judgment shall also project as to how the idea of good governance was ignored, violated and shattered before or after the institution of this writ petition during the month of February 1998. It is the proper stage to express that good governance can materialize, if there IB respect for the law of the land,
11. The separate homeland-Pakistan–was desired and achieved by the Muslims with the background of Islamic Ideology through multifarious sacrifices of migration, life, honour, economy etc. According to Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973 “Islam shall be the State religion of Pakistan”. Article 2-A of the Constitution, 1973 provides that the principles and provisions set out in the Objectives Resolution re¬ produced in the Annexure have been made the substantive part of the Constitution and shall have effect accordingly. The Objective Resolution was inserted by Presidential Order No. 14 of 1985. The aforesaid Annexure (Article 2-A) is being reproduced in toto as under for the emergence of the true picture:
“CONSTITUTION OF PAKISTAN
The Objectives Resolution
(In the name of Allah, the most Beneficent, the most Merciful).
Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;
This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan;
Wherein the State shall exercise its powers and authority through the chosen representative of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and the Sunnah.
Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;
Wherein adequate provision shall be made to safeguard the legitimate interest of minorities and backward and depressed
Wherein the independence of the Judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards International peace and progress and happiness of humanity.”
12. Our beloved country–PAKISTAN–is an Islamic State and not a secular State. Islam is the State Religion of Pakistan in view of Article 2 of the Constitution of the Islamic Republic of Pakistan. Under Article 31 of the Constitution, steps shall be taken to enable the Muslims of Pakistan individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to Holy Qur’an and Sunnah. Further State shall endeavour, as respects the Muslims of Pakistan to make the teachings of Holy Qur’an and Islamyiat compulsory, to promote unity and the observance of the Islamic moral standards, to secure the proper organization of Zakat, Ushr, Auqaf and mosques. Under Article 40 the State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic Unity. Only a Muslim not less than the age of 45 can be elected as the President of Pakistan under Article 41(2). Under Article 91 there shall be cabinet of Ministers with the Prime Minister (at present obviously the CHIEF EXECUTIVE) as its head, to aid and advise the President in the exercise of his functions. According to the proforma of Oath to be administered to the said office only a Muslim can contest and be elected as a Prime Minister of Pakistan. According to Article 203-C the Federal Shariat Coun of Pakistan has been constituted which under Article 203-D has been empowered either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or the Provincial Government, examine and decide the question whether or not any provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur’an and the Sunnah of the Holy Prophet (p.b.u.h.). Under Article 203-F (3) Shariat Appellate Bench has been constituted in the Honourable Supreme Court of Pakistan to hear the appeals against the judgments of the Federal Shariat Court. According to Article 227 all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. Under Article 228 the Council of Islamic Ideology has been constituted which has the jurisdiction-to make recommendations as to ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with principles and concepts of Islam as enunciated in the Holy Qur’an and Sunnah, to advise as to whether a proposed law is or not repugnant to the Injunctions of Islam, to bring existing laws according to Injunction of Islam. In the Third Schedule of the Constitution, 1973 are published the approved proformas about the Oaths of office of the President, the Prime Minister (and both have to be Muslims),
Federal Minister or Minister of State, the Speaker of National Assembly or Chairman of Senate, Deputy Speaker of National Assembly or Deputy Chairman of Senate, Member of National Assembly or Member of Senate, Governor of Province, Chief Minister or Provincial Minister, Speaker of a Provincial Assembly, Deputy Speaker of a Provincial Assembly and Member of a Provincial Assembly. All of them have to individually solemnly swear in addition to other undertakings that he will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan and that he will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan. According to the relevant proforma of the oath of office of Auditor General of Pakistan, Chief Justice of Pakistan or Chief Justice of a High Court or Judges of the Supreme Court or a High Court and the Chief Election Commissioner each of them has to solemnly swear to discharge the duties and perform the functions in accordance with the Constitution of the Islamic Republic of Pakistan in addition to other undertakings. In the proforma about the oath of office of the Chief Justice or Judges of the Federal Shariat Court each of them has to solemnly swear to discharge the duties and perform the functions to the best of ability and faithfully in accordance with law. While taking Oath of each of the aforesaid office all have to pray “May Allah Almighty help and guide me (Ameen)”.
13. The frame of the Constitution of the Islamic Republic of Pakistan, 1973 is based on Islamic Ideology and no Article of the Constitution or any section of any codified law can be against the Injunctions of Islam. With this background a question arises at to how the Quranic verses and the Ahadith of the Holy Prophet (p.b.u.h.) can be ignored with respect to the grievance of Noor Muhammad petitioner voiced through the filing of this writ petition.
14. The Holy Prophet Muhammad (S.A) very kindly expressed in the lKhutba-tul-Hajja-tul-Wida’ as under: –
“I am leaving in your midst some thing which if you held it fast will not let you go astray and it is the Book of Allah. Beware of exaggeration in religious matters. People before you have perished because of it.”
Sunnah of Holy Prophet Muhammad (p.b.u.h.) is one of the sources of Muslim Law which comprises the sayings and actions of the Holy Prophet (p.b.u.h.). The Sunnah is the Commentary on the Holy Qur’an. As such the kind words of the Holy Prophet (S.A) narrated through ‘Khutba tul Hajja tul Wida’ are also to be followed by the Muslims in letter and spirit. At this proper stage it shall have to be seen as to whether any disobedient, indisciplined and accused person can make liable his family for his acts/mis-deeds/crime. In the Comments/Report the Police Officers have not mentioned any fact against the petitioner or his family members or any act of the petitioner or his family members to make them liable for any offence or mis-deed allegedly committed by Abdus Sattar accused of the murder case who is the son of Noor Muhammad writ petitioner. I feel honoured to express that our Holy Prophet Muhammad (peace be upon him) in his last Sermon commonly known as ‘Khuiba tulHajja tul Wida’ has very kindly expressed as under for the guidance of the man kind:
“Hence forth the offender himself will be responsible for the offence; no son will be charged for the father’s crime and no father will be punished for the crime committed by the son.”
17. I have to express my confirmed belief that no Muslim can and should are disobey the aforesaid sermon of our Holy Prophet Muhammad (p.b.u.h.) out of which the aforesaid portion has been quoted, not to speak of that the same is violated. I make bold in expressing that the disobedience of the aforesaid sermon has to be curbed with iron hand. We all have religiously been taught as under:
“Stop the vice by your hands (force) and if not possible, then orally challenge him to desist and if you cannot do this much, at least denounce in your heart. This is sign of weak faith (Emaan).”
18. It is necessary to record that even under the statutory laws of our country only and only the accused himself is responsible for the offence committed by him and no near and dear, friend can be made to sail with the accused in the same boat. It is simply surprising that the innocent are made to suffer without any fault on their part. What a pity?
19. Now I take up the matter about the entry of the police in the house of the petitioner without permission of inmates who admittedly, as expressed in the comments/report submitted by the Police Officers, are not the accused of the murder case.
20. Asking permission to enter a house or a dewelling place is necessary as Islam sets great value on the privacy of home life. Privacy is the state of being let alone. It means freedom from human interference by any means. Going into the houses of others without permission is strictly forbidden in Islam. The home of a person is meant for rest, solace and peace. Sudden entry into the homes of others leads to many affilications and creates psychological problems particularly for females and minors who feel in¬ secure for all the times and simply go on pondering over the irony of fate. It is necessary to record that some times even the cattle, tractor and other house-hold articles of the family are removed without preparation of memo of recovery which are either mis-appropriated or, handed over to others without any writing to the detriment of the owner(s). The house hold articles are also damaged.
21. Sanctity of privacy has been enjoyed and ensured by the Holy Qur’an to the extent that entry into a house without permission is forbidden as laid down in verses 27 and 28 of Surah Al-Noor.
“Oye who beh’eve! Enter not houses other than your own without first announcing your presence and invoking peace upon the folk thereof. That is better for you, that ye may be heedful”
“And if ye find no one therein, still enter not until permission hath been given. And if it be said unto you; Go away again, then go away, for it is purer for you. Allah knoweth what ye do.” Al-Qur’an 24: 27-28
22. These Quranic verses contain simple social injunction which, if acted upon, is calculated to save the society from trouble, suspicion and slander-mongering. It puts a stop to possible scandals and preserves the privacy of the houses which ought not be disturbed and intruded upon.
23. At this stage the Sunnah of our Holy Prophet Muhammad (p.b.u.h.) has to be referred to, which is a source of Shariah. It comprises the sayings and actions of the Holy Prophet Muhammad (p.b.u.h.) as well as the agreements entered in his presence with his blessings. The Sunnah is the treasury of wisdom which is at once a commentary on the Holy Qur’an and compliments to its teachings. Holy Qur’an gives aims while Sunnah provides the ways. The authority of Sunnah can be sure and definite. The Holy Prophet (p.b.u.h.) established law and order in the uncivilized country and gave them balanced Constitution and law which gave a workable