Can the police enter house without permission for search?

PLJ 2000 Lahore 354

Present: MUHAMMAD NASEEM CHAUDHHI, J. NOOR MUHAMMAD-Petitioner

versus S.H.O. POLICE STATION, KLUR KOT, DISTT. BHAKKAR

and 4 others-Respondents

W.P. No. 1915 of 1998, decided on 3.11.1999. <i)

Criminal Procedure Code, 1898 (V of 1898)-

—S. 102--Constitution of Pakistan (1973), Art-Search by police-Entry of house without permission-Sanctity of privacy-Trampling of norms & ethics-Dignity of man protected under constitution not given any weight by Police-Verses 27 and 28 of Surah Al-Noor—Whether Privacy could be disturbed under any law of land-Question of~Going into houses of others without permission is strictly forbidden in Islam-Home of a person is meant for rest, solace and peace-Sudden entry into homes of others leads to many afflictions and creates psychological problems particularly for females and minors who feel in-secure tor all times and simply go on pondering over irony of fate—Sanctity of privacy has been enjoyed and ensured by Holy Qur'an to extent that entry into a house without permission is forbidden as laid down in verses 27 and 28 of Surah Al-Noor-Accordiag to Article 14 of Constitution, 1973 dignity of man and, subject to law, privacy of home, shall be inviolable and no person will be subjected to torture for purpose of extracting evidence.

[Pp. 371, 379] F, G K

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—S. 103-Search--Whether could be conducted without search warrant by a competent Court-Daparture from procedural law—Effect-Search Warrants have to be issued by competent Courts and obtained by Police/Executive authorities about aforesaid types of search on basis of relevant Search Warrants-Even under Article 22 of Prohibition (Enforcement of Hadd) Order, 1979 house cannot be entered and searched without any Search Warrant to be issued by competent Magistrate, Collector, Prohibition Officer for search of  any intoxication- Section 103 of Cr.P.C. provides that search of house is to be made by Police in presence of two or more respectable persons of vicinity and occupant of house may attend proceedings—Wisdom behind is that sanctity stands attached to privacy of occupant of dwelling and search ofevery type is to be made in presence of citizens according to manner in incorporated in procedural law,          [P. 375] H & I

(Hi) Criminal Procedure Code, 1898 (V of 1898)--

—S. 167(4)-Compliance of provisions of Section 167(4) Cr.P.C.-Adoption of. utmost protections with all seriousness in granting physical remands of convicts or under trials-Role of Courts to prevent extra-judicial killing by police-If physical remand is granted by a Magistrate a copy of order has to be forwarded to Sessions judge under Section 167(4) of Code of Criminal Procedure who can suo moto review same under Section 439-A of Code of Criminal Procedure—However, if physical remand is granted by a Special Court or an Executive Magistrate not under administrative control of Sessions Judge, he need not send a copy of order to him- Special Courts and Magistrate should note that utmost precautions are to be adopted with all seriousness and physical remand of a convict or an
under trial prisoner confined in Jail in some other case must not be granted in routine and carelessly, otherwise they can also be held
responsible/liable if any extra-judicial killing is effected afterwards by Police.          [Pp. 406 & 407] DD & EE

(iv) Criminal Procedure Code, 1898 (V of 1898)-

—-Ss. 47 & 48-Constitution of Pakistan (1973), Arts. 4, 14 & 25--Search of a place-Practice of Police to enter houses of citizen without permission-Third degree methods and shoe heating with threats of murder in police encounters—Public complaints resenting police behaviour in vexing, taxing female members of inmates of house-Protection of law-Equality of citizens—Justification & validity of house trespass by police without permission, unabated enterence & showering of insult-Challenge to— Police practice deprecated-It is a common complaint these days that without any hesitation, without legal justification and just in routine police has made it a practice to enter houses of citizens and in such like cases family of absconder accused is vexed and taxed by making entry in house without permission under garb that absconding accused is present there—Even females are insulted by putting different questions to them--Pracucally family members viz.; children, old or young, males or females, married or unmarried etc. are called at Police Station who are made to sit there in a disgraceful manner upon whom insult is showered by differentthird degree methods who are also administered shoe beatings publicly and in Police Station-Even threats of murder in fake police encounters are issued and rather accused or his relatives are also eliminated in staged encounters also termed/known as Street Justice Method-In this regard aforesaid kind words of Holy Prophet (P.B.U.H.) contained in last Sermon (Khutba-tul-Hqjja-tul-Wida) have to be again referred to that "henceforth, offender himself will be responsible for offence; no son will be charged for father's crime and no father will be punished for crime committed by son"-Consequently police is not competent to enter house of a fugitive from law wherein he is not present/living while his nears and dears are putting up who have no concern with occurrence and not liable for occurrence-Held: There was no justification on part of respondent-SHO to enter house of petitioner as alleged by him and to shower insult on his family who has transgressed his authority.

[Pp. 366, 379, 381] E & L & M

(v) Criminal Procedure Code, 1898 (V of 1898)-

—Ss. 47 & 48~Search of a place-Procedure for-Mis-use of provisions by police-Perpetration of atrocities, entry without lawful manner and disruption of Chaddar and chaar Diiuan--Grievance generally voiced against police-Analysis of-No sanctity is provided to Chaddar and Chaar DJiyari-These sections do not empower Police to enter house through stretched Auto Ladders and scaling over walls without making demands to enter house through doors and by insulting, humiliating male, female occupants authorized to use premises-Held: No free hand can be given to police to misuse provision of Sections 47 & 48 according to its . whimsical hypothesis in Islamic Republic of Pakistan.   [P. 378] J

(vi) Criminal Procedure Code, 1898 (V of 1898)--

—-Ss. 54 & 190-Arrest by Police-Blackening of faces and mishandling citizens-Tyranny, oppression and degenerating methods-Sign of bravery of a good Police officer-Transgression of authority not permissible under law-Salvation of degradation-Application of Section 190 Cr.P.C.-- Blackening of faces of accused and their family members/relatives, making them to ride on donkeys, getting their head, beard, eye brows, eye lashes etc, shaved, their old and young male and female members to sit in Police Station, their mis-handling creating shock-wave awful condition, taking off their shoes and making them to stand for hours in cold as well as in scorching heat according to available season, dragging them out bare-footed with their hands cuffed and handkerchief inserted in mouth etc. etc. are some of other degrading methods adopted by police through transgression of authority which are not permissible by religious commands, law of land and norms of legal ethics as well as human rights-Aforesaid degradation of human-beings are offences in criminal field for which private complaints in terms of Section 190 of Code of  Criminal Procedure Code can be filed and even civil suits for recovery of damages can be instituted-It is generally expressed by some of autocratic Police Officers that they can arrest any person under Section 54 of Code of Criminal Procedure without warrant and for that matter they can  enter/get ingress in any premises-Legally it is not so, which stands projected by aforesaid statutory provisions-Some times male, female, old young relatives of absconding accused are arrested, removed under Section 54 of Code of Criminal Procedure whose arrest is not shown in Daily Diary and out of them some are even crippled or elimenated- Habeas petitions filed and un-necessary expenses of imposed litigation have to be borne-Held: Arrest by Police U/S. 54 can be effected in accordance with law and private complaint can be filed alongwith civilsuits for recovery of damages.                                          [Pp. 384 & 388] P & R

(vii) Custodial Killing-

—Elimination of citizens at whims of Police-Deprivation of law and literty in violation of Art. 9 of Constitution of Pakistan, 1973-Trespassing houses, damaging property and removing innocent persons to unknown places for killing-Licence to killing people-Justification for such violence and oppression-During custodial killing being carried out by Police   "Killed Person(s)" are never desirous and eager to murder Police officials as they are fettered/chained and thus helpless-Liberty and life of citizenscannot be disturbed, eclipsed by police by trespassing their houses, damaging property, removing same and unjustified killings--A very dangerous dimension to this proclivity to "act first, think later" had been added by licence-to-kill allowed to Police till recent past by Political authorities-Family members of persons meeting custodial death including minors, old persons and females have been left in lurch-Police cannot be granted authority of eliminating citizens at their own whims in violation of Article 9 of Constitution, 1973 wherein it is provided that no person shall be deprived of life or liberty save in accordance with law.

[P. 398, 401, 402] W, X, Y & AA

(viii) Extra-Judicial Killing-

—Removal of accused from judicial lock-ups and elimination by Police-- Intfirrogation of a prisoner, convict or under-trial-Obligation of District Magistrate and Superintendent Jail-Non-adherence of instructions mentioned in Appendix No. 25.58(1) of Police Rules, 1934 and giving free hand to police facilitating custodial killing-Application of Section 167 Cr.PC.—persons at helm of affairs got this extra-judicial killings performed by their subordinates up to rank of Sub-Inspector/Inspector Police without having any fear of God in their heart of hearts for which they shall have to account for at appropriate time-Day of Judgment- Some time genuine complaint is made that a convict undergoing sentence or an under trial prisoner being tried in Court premises or in jail in easels) is joined in investigation in some other case registered earlier or after his remittance to Jail or Judicial Lock Up as case may be who is taken, away to a Special Court or a Magistrate by Police-His physical  remand is granted in routine-He is killed under custody and same episode that effort to rescue him was made by his friends etc., when he lost has life, is repeated~A prisoner, convict or under trial, cannot be interrogated without an order in writing from District Magistrate addressed to Superintendent of Jail-Physical remands are granted bySpecial Judges/the Area Magistrate or in his absence by Duty Special  Judge/Duty Magistrate under Section 167 of Code of Criminal  rocedure which must be allowed specifying days, maximum fifteen in number, with all seriousness containing cogent reasons and not in routine- Instructions mentioned in Appendix No. 25.58(1) (remands to police custody) of Police Rules, 1934 are not adhered to giving  free hand to police facilitating custodial killings.            [Pp. 402, 404, 405] Z, BB & CC

(ix) Judge-Last-

-—Oppression and repression by police-Final Arbiter and last judge- Question of--Only God, the Most High, is final Arbiter, Knower, Last Judge~At that most difficult and crucial time commands ordained by God and Sunnah of Holy Prophet Muhammad (p.b.u.h) shall be operative/ effective.                     [P. 412] MM

 (x) Pakistan Penal Code, 1860 (XLV of 1860)--

—S. 216-Constitution of Pakistan (1973), Art. 199--Harbouring--Offence of-Registration of case by Police without making arrest of absconder accused-Unfounded allegations-Intention of Police to involve relatives of accused-Arrest without justification-High handedness and vexation causing to nears and dears of absconder accused-Validity-Generally cases under Section 216 Pakistan Penal Code are registered, but absconder accused is not arrested-Police would show that absconderaccused made good his escape in presence of contingent of Police which is enough to falsify this type of allegation-Rather it casts lurking suspicion on working of Police as it is not possible that an absconder accused would run away in presence of Police officials especially when there is no encounter-This type of allegation or one expressed by respondent-police in comments about imparting of information by complainant of murder case that absconder accused was seen taking his meals with his father is adopted to justify Police to involve relatives of absconder accused to put pressure upon him to surrender as third degree methods are adopted and employed on nears and dears in this regard-Afore-said type of allegation made by complainant of murder case does not come within ambit of words harbour or conceal used in Section 216 Pakistan Penal Code—A case under Section 216 Pakistan Penal Code is registered to justify their action simply to vex concerned relatives involved in criminal case-They are arrested, but are not bailed out even though said Section 216 Pakistan Penal Code is bailable as their arrest is not shown in Daily Diary of Police Station in violation of Section 44 of Police Act, 1861.

[Pp. 365, 383] A, B, C, D & N

(xi) Police Act, 1861 (V of 1861-

—S. 44-Punjab Police Rules, 1934, Rr. 22.49(b) & 22.50-Constitution of Pakistan (1973), Arts. 4, 9, 14 & 25-Detention of male or female at a Police Station-Licence to Police and un-bridbed authority to humitate ridicule citizens-Requirements of law not fulfilled-Whether justified—An important aspect of matter in hand by expressing that a person, male or female, cannot be detained in any Police Station or at some other place unless he or she is required in a cognizable and non-bailable offence whose arrest is to be shown in Daily Diary of Police Station under Section 44 of Police Act, 1861 and under Rule 22.49(h) of Police Rules, 1934-However, arrest is not shown even though due to a wrong entry in Daily Diary a police officer can be dismissed under Rule 22.50 (para 1) of Punjab Police Rules, 1934-Police officers have not been given un-bridled authority to humiliate and ridicule citizens without any iota of evidence against them-Held: To call a person to Police Station without legal and factual justification, make him to sit there against his will, prima facie amounts to wrongful confinement and action needs to be taken againstPolice.                                            [Pp.383 & 387] O & Q

 (xii) Police Encounters—

—Taking of law by Police in its own hands-Unlocking handcuffs, driving accused to deserted places and opening of fire-Violence in Punjab Province by Police under connivance of superior offices-Foundation of administration of justice-Establishment of Independent agency- Sometimes law is taken in its own hands by Police-Grievance/complaint of public/affected party is that accused or their relatives are allegedly driven to deserted areas who are directed to unlock handcuffs and to run in darkness for becoming fugitive while during that process accused is shown to have been killed in an encounter-This ingredient of violence, had become a routine matter in  our Province till recent past-News is generally got published in Print Medial and read by public that accused persons were being escorted by police for recovery of some incriminating  article or pointedness of some place of occurrence during investigation of some case when his accomplices/relatives attacked convoy/police vehicleto get them released and accused died in ensuing encounter—No scratch is found on body of Police Officers-No mark of firing is seen on police vehicle-Accused even though chained/fettered are found dead at spot-It cannot simply be under stood as to how it is possible that every time fettered person(s) get killed, but not an injury/ scratch is received by any Police officer or by persons arriving there to get released helpless, hand cuffed person(s) and no mark of firing is seen on vehicle-Grievance of public that FIR is not registered against police and if it is registered then challan is not submitted as false and tainted investigation is conducted by fellow police officers and invariably accused are declared as innocent~In this respect an Independent Agency comprising retired Judges, retired Army Officers and retired Bureaucrates shall have to be constituted for - correct and forceful investigation which is foundation of administration of justice-It is happening so, as superior police officers not only defend subordinates, they also prompt them in matter—They do not restrain them.          [Pp,391, 392 & 394 ] S, T, U & V

(xiii) Police force-Out of Turn Promotions-

—Accelerated promotions-Extra-judicial killing-Qualification of-Political patronage and promotions for lulling person chained and fettered-Rules of Special promotions according to Police Rules-Validity of out of turn promotions otherwise than due application of rules-Question of-Recommendations for out of turn/accelerated promotions have to be made and it is not provided that at whims of Political Authorities, as has happened in recent past, out of turn promotion shall be awardedimmediately on happening of extra judicial killings-It speaks of political patronage in such type of custodial killings-Even otherwise accelerated promotion can be appreciated if there is real encounter and desperate persons have been arrested or even killed during encounter due to bravery of Police Official(s)--Without prejudice Court would express that killing of a person chained and fettered, and physically helpless in strict sense, cannot be termed to be an act of valour and bravery-According to Rule 13.19 Special Promotion can be awarded to recipients of PoliceMedals conferred by Federal Government-ln light of Rules incorporated in Chapter XV of Police Rules, 1934 cash awards and Commendation Certificates can also be granted-However, it can safely be expressed that custodial killings of past have not been liked, approved by citizens and thus accelerated promotions in lieu of same have not been viewed with commendation even though same are being enjoyed by benefitted non- deserving Police Officials.       [Pp. 408, 409] II & JJ

(xiv) Police Officers-Gang of-

—-Threats of elimination-Extracting money from rich persons by issuing threats by police-Unsettled life of citizens and need of protection- Question of~There were various public complaints that aforesaid group of Police Officer minted/garbed huge amounts by issuing threats of elimination to different rich persons who had no option but to submit to their commands and demands-Hence it is high time to urge police to abandon role of Executor and Judge, because this could lead to a very chaotic situation.                                                                                  [P.. 407] HH

(xv) Police Promotion--

-—Killing of accused by police on plea of effecting recovery-Violation of Section 174 & 176 of Cr.P.C.-Elimination within statutory period of 24 hours of arrest including convicts and under trials—Free hand to police and overwhelming dissatisfaction and discontentment amongst citizens-Cause of--Police has coined strange type of method that accused were being taken for recovery of incriminating article(s) or pointedness of place of offence/murder-ln many cases within statutory period of 24 hours of arrest accused including convicts and under trials were eliminated/killed--No autopsy is made known to public-No inquest as required under Section 174 of Code of Criminal Procedure is prepared in some cases-No Judicial Inquiry is got conducted by District Magistrate in some of custodial killings under Section 176 of Code of Criminal Procedure-On contrary Police Officers were decorated and promoted-Officers recruited as Assistant Sub-Inspector or Sub-Inspectors or Inspectors have beenpromoted to rank of Inspectors, Deputy Superintendents of Police and Superintendent of Police within a period of less than a decade.

[P. 407] FF & GG

(xvi) Political Patronage-

—-House trespassing Extra-Judicial killing, blackening of faces by police-­Perpetration of brutalities under instructions/direction of big boss-Abdication of political pressure-Need of time-Court's feeling is that District Magistrate has to remain vigilant within his Civil District who has to check such brutalities-However, political patronage remained responsible for his indolence towards this conduct of Police-If these injustices are not checked, wrath of citizens may play havoc—It is commonly said that Boss is not always right, but Boss is always a Boss- Keeping in view both aforesaid sides it can well be expounded that commands for custodial killings and illegal orders of superior officers need not be obeyed by subordinates-Illegal ways adopted thereof by Superiors and Juniors with political patronage cannot be approved by law abiding citizens.  [Pp. 410 & 412] KK, LL & MM

(xvii) Remand-

—-A prisoner, convict or under trial, cannot be interrogated without an order in writing from District Magistrate addressed to Superintendent of Jail-Physical remands are granted by Special Judges/the Area Magistrate or in his absence by Duly Special Judge/Duly Magistrate under Section 167 of Code of Criminal Procedure which must be allowed specifying days, maximum fifteen in number, with all seriousness containing cogent reasons and not in routine-Instructions mentioned in Appendix No. 25.58(1) (remands to police custody) of Police Rules, 1934 are not adhered to giving free hand to police facilitating custodial killings.

[P. 405] CC

Mr. Aziz Ahmad Malik, Advocate for Petitioner. Syed Zulfiqar All Bokkari, Assistant Advocate-General Punjab for Respondents.

Date of hearing: 2.11.1999.

JUDGMENT

One Abdus Sattar is the son of Noor Muhammad writ petitioner. Abdus Sattar was involved in a murder case. After fulfledged hearing he was convicted and sentenced to life imprisonment. Abdus Sattar filed an appeal before the High Court whose sentence was suspended on statutory ground and he was admitted to bail. Abdus Sattar is said to have committed an other murder who is required by the SHO Police Station Klur Kot, District Bhakkar as an accused of this case. According to Noor Muhammad petitioner he got published a citation of disinheritment with respect to his son Abdus Sattar in Daily Nawa-i-Waqt, Lahore oh 3.7.1997 and got himselfdis-associated with him and seversed his relations thereof. According to him he and other family members have no concern with his son Abdus Sattar and his mis-deeds. Noor Muhammad petitioner filed this writ petition on 4.2.1998 against the SHO Police Station Klur Kot, District Bhakkar, Deputy Superintendent of Police, Klur Kot Circle, District Bhakkar, Superintendent of Police, Bhakkar, Deputy Inspector General of Police, Sargodha Range, Sargodha, Inspector General of Police Punjab, Lahore (Respondents Nos. 1 to 5) wherein he voiced the grievance to the effect that inspite of the fact that he has no connection with his son Abdus Sattar about whose mis-deeds he was not liable, the respondents-police were continuously bent upon terrorising, disgracing and creating havoc upon him and his family which was violative of the Constitution 1973, the law of the land and against the law of civilized society as will as the teachings and preaching of Islam. According to the petitioner in violation of the Police Rules, 1934 he and his family members are called to the Police Station, kept in habeas and are tortured mentally who even are threatened to be murdered in fake police encounter which have become an order of the day. According to him they are disgraced publically by making them sit in the Police Station and giving them the shoe-beatings. He maintained that even according to Sections 47 and 48 of the Criminal Procedure Code the procedure for the search of place for the person sought to be arrested has been given and even for the breaking open of Zanana legal protection to the womenfolk involving the 'Chaddar and Chardewari' is provided; yet the house is trespassed and it has become a common practice with the police to enter forcibly and to trespass the houses of the people and to torture the innocent inmates of the houses while the record of the police is always silent. The petitioner averred that he and his family members were facing the same misereies at the hands of thepolice which is supposed and designated to be a disciplined institution/force and which is not proceeding in accordance with law. He maintained that according to the Islamic Law as enunciated in the Holy Qur'an and Sunnah, the Constitution of the Islamic Republic of Pakistan 1973 and statutory law no one can enter in the house of others without prior permission, no one can be murdered/assassinated without any reason and without the order of a Qazi; but the Police is always bent upon threatening to murder, in Police staged encounters, the innocent family members of the accused and that the extra-judicial killings are on the increase. The petitioner refferred to"Khutba-tul-Hajja-tul-Wida" wherein our Holy Prophet Muhammad (peace be upon him) very kindly expressed that "no one would be responsible for the crime of the other; the son will not be liable for father's crime and the father will not be punished for the crime committed by the son"; while the respondents were out to ignore and violate the aforesaid kind and illuminating words. He maintained that without a search warrant the police could not enter his house while using auto-ladder fitted in the police vehicle and to the disrespect and disgrace of the womenfolk in the house and other family members and that the police was violating the privacy of his home. He alleged that the police, Police Station KLur Kot arrested him on 13.9.1997 without any arrest warrant or without registration of a criminal case against him. He maintained that he was arrested from Pull-Ill, Sargodha from the gate of Market Masque when he was going to offer his 'Maghrib' prayers and in this regard he referred to affidavits, fourteen in number of different persons, attached with this petition. He pleaded that he was taken to Police Station Klur Kot on 14.9.1997 and a case under Section 216 Pakistan Penal Code was registered against him allegedly for harbouring his aforesaid son Abdus Sattar. He denied the aforesaid fact on the ground that his son did not visit his house whom the refuge was never afforded by him. He maintained that he was admitted to bail but from 14.9.1907 onwards the Police had raided his house illegally twenty times without any entry in the official record who abused and insulted him, his wife and his three young daughters. He maintained that the police has no authority to trespass his house at any time and at its discretion being against Shariah, teachings of the Holy Prophet and the law of the iaitd as he and his family members are not responsible for the acts and mis-deeds of his son Abdus Sattar. He alleged that two days before the Eid-ul-Fitr he was taken to Police Station Klur Kot by local police wherefrom he was released later on after receiving the illicit gratification and that due to highhandedness of the police he was not in the position to effect the 'Rukhsati' of his daughter uhube marriage was scheduled to take place on 25.2.1998.

2.          With the aforesaid background Noor Muhammad writ petitioner prayed that the respondent-police may be directed to act in accordance with law, not to harass him and his family members by launching illegal raidsthrough trespassing his house, making their  movements limited by making them to sit in the Police Station, to humiliate them and to penalize them by effecting interference in their privacy or to injure their dignity in any manner whatsoever for the alleged nu's-deeds of his son Abdus Sattar for which he and his family members are not responsible.

3.          In the circumstances of the matter I called for the comments from the Superintendent of Police, Bhakkar as well as the Inspector General of Police, Punjab, Lahore. I particularly mentioned in the relevant order that the comments to be prepared by the Inspector General of Police Punjab, Lahore shall be gone through by him and shall be signed by him. I had to pass the order because the aforesaid type of working of the Punjab Police is being brought to the notice of the Lahore High Court, Lahore in large number of cases wherein the nears and dears as well as the other relatives,acquaintances of the fugitive from law generally complain about theirinvolvement in false cases thereof and showing disgrace, disrespect to them as well as causing of harassment and torture with threats of killings without legal and factual justification.

4.     Mr. Jehanzeb Barki, Inspector General of Police, Punjab, Lahore sent the comments signed and obviously read by him wherein it is contained that Abdus Sattar son of Noor Muhammad writ petitioner is a proclaimed absconder and that Noor Muhammad was arrested oh account of harbouring his absconding son. He assured that no harassment shall be extended to Noor Muhammad petitioner against whom a case under Section 216 Pakistan Penal Code has been registered which is pending before the Area Magistrate. The Superintendent of Police Bhakkar as well as the S.H.O. Police   Station   Kalur  Kot  District  Bhakkar  submitted   heir  separate comments/report wherein they took-up the stand that Abdul Sattar son of Noor Muhammad was a fugitive from law who is involved in a murder case registered at Police Station Kalur Kot. They expressed there in that the information was imparted by Ahmad Nawaz complainant of murder case of FIR No. 150 registered on 18.6.1997 under Section 302 Pakistan Penal Code at Police Station Kalur Kot that Noor Muhammad (writ petitioner) and his son Abdus Sattar (absconder) were found sitting together and taking meals at Chah Gulbazvala within the area of Police Station Kalur Kot and that on its basis FER No. 216 dated 14.9.1997 was registered under Section 216 Pakistan Penal Code at Police Station Kalur Kot against Noor Muhammad writ petitioner. According to the said respondents-Police Officers thereafter the raid was conducted at the place the writ petitioner harboured his son which remained futile and that the petitioner was arrested from "Chandni Chowk" M.M. Road on 16.9.1997 who was found guilty and challaned to face the trial under Section 216 Pakistan Penal Code. The causing of harassment to petitioner and his family members was denied. However the under-taking was given that no illegal activity shall be extended in future to the petitioner and his family members. It was asserted that the writ petition was filed without legal or factual justification.

5. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General and gone through the record before me. Learned counsel for the petitioner laid the emphasis that the petitioner and his family members are not liable for the mis-deeds of his son Abdus Sattar who has become a fugitive from law and whom he has disinherited through the publication of Notice dated 3.7.1997 in daily Nawa-i-Waqat Lahore. He added that for the crime allegedly committed by his said son the police cannot degrade, insult and humiliate other relatives by calling them to Police Station and disgracing them by adopting third degree methods. Hecontinued that threats for murder in false Police encounter were made to the petitioner, his wife and daughters whereby they had lost the confidence and were panic striken who at present luckily are alive without any damage. According to him the Police has coined the method of extra-judicial killings whereby the accused and their relatives are being killed/eliminated without resort to judicial process whereby even after death penalty awarded by the Court of competent jurisdiction the appeals are maintainable before the High Court and Supreme Court and that the false Police encounters have no blessings from the religions commands and the law of the land which are rather negation of rule of law provided by the Constitution, 1973 and statutory law. He maintained that the Police registered FIR No. 216 dated 14.9.1997 under Section 216 Pakistan Penal Code on the information of the complainant of the murder case that petitioner's son Abdus Sattar was seen having meals with him at Chan Gulbazvala, which was simply false, while the Police itself did not take any step for the arrest of the absconder accused and that if the aforesaid type of information/allegation is given the weight then one or more cases can be registered daily against the petitioner and other family members on the information of the complainant of the murder case which would be naked source of harassment and disgrace. According to him registration of FIR No. 216 was the out come of mala fides and such a free hand may not be allowed to the Police. On the contrary learned Assistant Advocate General argued that Noor Muhammad writ petitioner is the accused of crime Case No. 216 registered on 14.9.1997 under Section 216 Pakistan Penal Code and the Police had the authority to proceed in the matter as he harboured and concealed his son Abdus Sattar, a proclaimed offender. He expressed that the denial of the Police about the unnecessary harassment may be considered enough and Noor Muhammad was rightly arrested. He referred to the under taking of the Police to the effect that the writ petitioner and his family shall not. be harassed. He added that there was no occasion to murder the petitioner and his family members and the apprehension is simply irrelevant. He maintained that a case under Section 216 Pakistan Penal Code can be got registered by a person from the public, if the information is imparted to the Police that any person has harbured orconcealed any fugitive from law. My view is that the reasoning adopted by the learned counsel for the petitioner has to prevail. Generally cases under) Section 216 Pakistan Penal Code are registered, but the absconder accused is not arrested. The Police would show that the absconder accused made good his escape in the presence of the contingent of Police which is enough toj falsify this type of allegation. Rather it casts lurking suspicion on the working of the Police as it is not possible that an absconder accused would ran away in the presence of the Police officials especially when there is no encounter. This type of allegation or the one expressed by the respondent-police  in   the  comments  about  the   imparting of information  by  the complainant of the murder case that absconder accused was seen taking hismeaJs with his father is adopted to justify the Police to involve the relatives of the absconder accused to put the pressure upon him to surrender as the third degree methods are adopted and employed on the nears and dears in this regard. The framers of Jaw (i.e. Section 216) made the same bailable and >, 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 Sattarabsconder.

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 isonly 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 theDisciplined 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.  rotection 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 IBrespect 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

ANNEX

(ARTICLE 2A)

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

classes;

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 Islamyiatcompulsory, 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 theCHIEF 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 ofPakistan. 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 inaccordance 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 havereligiously 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 otherhouse-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 inverses 27 and 28 of Surah Al-Noor.

VerseJ?

"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"

Verse 28

"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  ystem ofGovernment bestowing the fundamental rights for the individuals and for the people as a whole. The Holy Prophet Muhammad (p.b.u.h.) guaranteed definite rights to individuals which are inviolable. Rule of law and equality of all before law secured the position of persons against possible aggression or tyranny on the part of the persons in authority. Hazrat Muhammad (p.b.u.h.) was sent to earth to establish the rule of God and a system both just and good so that it is a source of restoration of appiness, solace and satisfaction in the minds of mankind. The love for lie Holy Prophet Muhammad (p.b.u.h.) showers the harmony and beauty which pervade all things. The Ahadeeth of the Holy Prophet Muhammad (p.b.u.h.) have been collected by the companions and disciples of the time and are there in black and white for our guidance. On the subject and dispute in hand I feel honoured to reproduce as under some of the Ahadith from Sahee-Al-Bokhari Volumes VIII and K by Dr. Muhammad Mohsin Khan, Islamic University Al-Madinah--Al-Munawarah:

(I)                                 "262. Narrated Abu Sa id Al. Khurdi (R.A;.-While Iwas present in one of the gatherings of the Ansar, Abu Musa came as if he was scared, and said, "I asked permission to enter upon Umar three times, but I was not given the permission, so I returned." (When Umar Came to know about it) he said to Abu Musa, "Why did you not enter?" Abu Musa replied, "I asked permission three times, and I was not given it, so I returned, for Allah's Apostle (S.A) said, "If anyone of you asks the permission to enter thrice, and the permission is not given, then he should return" Umer said, "By Allah! We will ask Abu Musa to bring witnesses for it."(Abu Musa (R.A) went to a gathering of the Ansar and said), "Did anyone of you hear this from the Prophet (S.A)?" Ubai bin Ka b (R.A) said, "By Allah, none will go with you but the youngest of the people (as a witness)" I (Abu Sa id) (R.A.) was the youngest of them, so I went with Abu Musa (R.A.) and informed Umar (R.A.) that the Prophet (8.A.) had said so.

(See Hadith No. 227 Vol. Ill)

(II)                    (14) CHAPTER.-If a man is invited, should he ask permission to enter at his arrival?

Abu Huraira (R.A.) said that the Prophet (S.A.) said, "(The invitation) in itself is his permission."

(El)                   263.  Narrated Abu Huraira (R.A.).-l entered (the house) alongwith Allah's Apostle (S.A) There he found milk in a basin. He said; "O Aba Hirr! Go and call the people of Suffa to me". I went to them and invited them. They came and asked permission to enter, and when it was given, they entered.

(See Hadith No. 459 for details)

(IV)                                                                        26.   Narrated Abu Huraira (R.A.).-that he heard Allah's Apostle (S.A.) saying, "We (Muslims) are the last (to  come)   but   (will  be)   the   foremost   (on   the   Day   of Resurrection)". And added, "If someone is peeping (looking secretly) into your house without your permission, and you throw a stone at him and destroy his eyes, there will be no  blame on you.

(V)                                                                            27.   Narrated Yahya (R.A.).-Humaid said, "A man peeped into the house of the Prophet (S.A) and the Prophet(S.A.) aimed an arrow head at him to hit him." I asked, "Who told you that?" He said, "Anas bin Malik," (R.A.).

(See Hadith No. 258 & 259 Vol. 8)

(VI)      39.    Narrated Abu Huraira (R.A.).-Abul Qasim (S.A)  said,  "If any  person  peeps  at you  without yourpermission and you poke him with a stick and injure his eye, you will not be blamed."

CVH)                38.  (a) Narrated Anas (R.A.X-A man peeped into

one of the dwelling places of the Prophet (S.A.). The Prophet (S.A.) got up and aimed a sharp-edged arrow head (or wooden stick) at him to poke him stealthily.

 (Vffl)               38.   (b) Narrated Sahl bin Sa'd As-Sadi (R.A.).-A man peeped through a hole in the door of Allah's Apostle's (S.A.) house, and at that time, Allah's Apostle (S.A.) had a Midri (an iron comb or bar) with which he was rubbing his head. So when Allah's Apostle (S.A) saw him, he said (tohim), "If I had been sure that you were looking at me (through the door), I would have poked your eye with this (sharp iron bar)". Allah's Apostle (S.A.) added: "The asking for permission to enter has been enjoined so that one may not look unlawfully (at what there is in the house without the permission of the people)."

(DC)                 39. Narrated Abu Huraira (R.A.).-Abul Qasim (SA) said, "If any person peeps at you without your permission and you poke him with a stick and injure his eye, you will not be blamed."

24.    It would be proper to insert one episode mentioned in Mukarraam-ul-Akhlaq Laabi  Biqar Muhammad Bin  Jaffar-Al-Khalaiti recorded in the case law printed as "Riaz Hussain versus SHO Police Station City Jhang" (PLD 1998 Lahore 35).

"Hazrat Umar (R.A) heard the singing voice from a house one night who entered the same by scalling over the wall. He also saw a lady and wine there. He uttered that he (the person) considered that he would show disobedience to God and would not be known? That person replied to the Amir-ul-Mominin (R.A.) not to proceed in haste as in case he had committed one sin he (Umar Ibni Khataab R.A.) committed three. First; that of spying. Secondly; entry in the houses is permitted from doors and he scalled over the wall and thirdly; God had ordained not to enter the houses unless permission had been given while no permission had been obtained. On that Umar (R.A.) admitted his mistake and did not proceed against that person who rather got the undertaking from him (person) to follow the right path."

25.   The aforesaid incident has projected that even the Ruler, obviously Police in the instant case, cannot enter/trespass the house of any person and that before entry permission must be procured from the persons living therein.

26.    Another story is told of Umar ibn al-Khataab (R.A) who when told that Abu Mihjan al-Thaqafi was drinking wine in his home with some of his companions, went to see. But when he entered the house, he found that Abu Mihjan was only with one man, whereupon Abu Mihjan said, "This is forbidden unto you, God forbade you from syping."

27.    These examples establish the. principle under Islamic Law that man's inviolability must be protected.

28.   In view of what has been expressed above the Muslims in Pakistan have to individually and collectively enable their lives in accordance

with the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah. In the light of the aforesaid Constitutional provisions; the aforesaid reproduced words of God in verses 27 and 28 of the Surah Al-Noor in Holy Qur'an and the aforesaid Ahadeeth have to be followed by every Muslim of every walk of life for all the times at all the places and obviously by every citizen of Islamic Republic of Pakistan belonging to any creed, religion, tribe, pillar of the State and every Department.

29.              At this stage it would be proper to express that entry in the house of a stranger/citizen by the Executive Authorities including the members of the Police Force has been streamlined by different codified provisions of law. Chapter VII of the Code of Criminal Procedure deals with the process to compel the production of documents and other movable property and for the discovery of the persons wrongfully confined. Part-B of Chapter VH ibid deals with Search Warrants. Section 96 deals with the issuance of Search Warrants in case the documents, letters and telegrams, mentioned in Sections 94 and 95 are to be produced/recovered. Section 98relates to the search of house suspected to contain stolen property, forged documents etc. Section 100 relates to the search for person wrongfully  confined. Section 102 deals with persons in-charge of closed place to allowthe search. These provisions project that Search  Warrants have to be issued  y the competent Courts and obtained by the Police/Executive Authorities about the aforesaid types of search on the basis of relevant Search Warrants. Even under Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 the house cannot be entered and searched without any Search Warrant to be issued by the competent Magistrate, Collector, Prohibition Officer for the search of any intoxication. Same is the provision under Article 20 of the Control of Narcotics Substance Act, 1997 according to which the Search Warrant is to be issued by the Special Court for search of a house when narcotic is alleged to have been kept/stored in a house and the same is to be  recovered. According to Notification No. F. 19(l)/96-A.III dated 26.8.1997 issued by the Ministry of Law, Justice, Human Rights and Parliamentary Affairs, Government of Pakistan the Special Courts shall comprise theSessions Judge posted in a District of the Province of Punjab. Section 103 of the Code of Criminal Procedure provides that the search of the house is to be  made by the police in the presence of two or more respectable persons of the vicinity and the occupant of the house may attend the proceedings. The wisdom behind is that sanctity stands attached to the privacy of the occupant of the dwelling and search of every type is to be made in the presence of the citizens according to the manner incorporated in the aforesaid procedurallaw.

30.       It is on the ground, stand and assertion that the absconding accused/fugitive from law is present and  hiding himself in  a  house, owned/possessed by a stranger or a relative; that the police takes the liberty as of legal right/competence to enter the house  without a search warrant In this regard Section 46 to 49 of the Code of Criminal Procedure are generally invoked and banked upon by the members of the Police Force/Executive Authorities which are being reproduced as under:-

"46. Arrest how made.--(l) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2)    Resisting endeavour to arrest police-officer. If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3)  Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death of with transportation for life.

47.           Search of place entered by person sought to be arrested.-If any person acting under a warrant of arrest, or any police-officer having authority to arrest, has reasons to believe that the person to be arrested has entered into, or is within, any place, the person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

48.      Procedure where ingress not obtainable.--If ingress to such place cannot be obtained under Section 47 it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose and demand
of admittance duly made, he cannot otherwise obtain admittance; Breaking open zenana-Provided that, if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public such person or Police Officer shall before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

49.     Power to break open doors and windows for purposes of liberation.--Any police officer or the person authorized to make anarrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person  who having lawfully entered for the purpose of making an arrest, is detained therein."

3L At this stage it would be proper to refer to the right of the police to invoke the provisions of the aforesaid Sections 48 to 49 of the Code of Criminal Procedure, 1898. The main grievance of the public, as also voiced in this writ petition, is that it has become a practice that the police enter any house on the assumption that without any search warrant the house can be searched under the aforesaid Sections 47/48 of the Code of Criminal Procedure to arrest the accused required by the police. In my view this is rough and wrong interpretation of the said codified procedural law. The said Sections 47 and 48 provide that on reasonable information such power can be exercised but sufficient time must be granted to the female inmates to withdraw there from (Zananu Place) and obviously keeping in view their honour and prestige.

r

32. It is to be conspicuously noted with all the seriousness that the demand is to be made by the Police to enter a house under Section 47 of the Code of Criminal Procedure. Further according to Section 48 of the Code of Criminal Procedure it is after notification of his authority and purpose and demand of admittance duly made by the Police who cannot otherwise obtain admittance that the outer or inner door or window of any home or place can be broken open to effect the entrance into such place for the arrest of the accused person(s). The meanings of word Demand according to concise Oxford Dictionary are "request made as of right or pre-emptorily, thing so asked, urgent claim" Thus it can safely be expressed that demand is polite. Interpreting within the above-said campus both Sections 47 and 48 of theCode cf Criminal Procedure provide that demand shall have to be made by the Police Officer from tiie persons residing in a house for free ingress to apprehend/arrest an accused. It is after the notification of his authority and purpose and demand of admittance duly made that the outer or inner door or windows can be broken by the Police to enter the premises to arrest the accused subject to the condition that a female not being the accused present therein shall be afforded the opportunity/chance to retire there from the relevant premises. I would express that even in the Code of Criminal Procedure enforced on 1st July 1898 the sanctity was attached to the privacyof a person validly occupying the premises to be searched. In the afore-said manner the demand is to be made i.e. permission is to be obtained to enter a house properly and according to the situation. It is after the refusal of the occupants to let the police enter the premises for the arrest of the absconding accused that the authority is notified, demand for admittance is made and thereafter in case of refusal: doors, windows of the house can be broken open and even at that time the females of home have to be provided the opportunity to withdraw before the doors, windows are broken open to arrest the accused. Thus in Sections 47 and 48 of the Code of CriminalProcedure it is clearly provided that the entry is to be made through the door after obtaining the permission and in case of denial the authority to break open the door, window can be exercised which means that the act of spying cannot be performed and the occupants cannot be surprised as is generally done by the Police. It would be proper and informative to refer to Section 49 of the Code of Criminal Procedure according to which a police who has lawfully entered the house for the purpose of making an arrest of an accused is detained therein is competent and authorized to break open any outer or inner door or window of any house or place in order to liberate himself or any other person. Thus the lawful entry shall play the legal role and steal the eminence about the entitlement/authority of the police for the use of power in this regard as weU. It follows that the police officer has to enter lawfully and not in an illegal manner by scaling over the walls or immediately breaking open the doors, windows without notice/demand as contemplated under Sections 47 and 48 of the Code of Criminal Procedure. At this stage it is proper to refer to maxim "ACOMMUNI OBSERVANTIA NONEST RECEDENDUM" i.e. "where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done same would not be lawful." It would express that it is well recognized rule of construction that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This being the position the Police cannot trespass the houses, dwelling places and make the entry therein illegally i.e. according to unlawful methods. Keeping in view the cumulative effect of the aforesaid analysis of the statutory provisions find discussion, it can safely be interpreted that the Police as the representative of the Ruler cannot enter the house without making the demand of admittancein the house and if the inmate(s) of the house refuse in the matter the Police can use the force for breaking open the door(s)/window(s). However, if the entry is not in a lawful manner as projected above the same would not confer the right to the police to liberate themselves in the afore manner provided under Section 49 of the Code of Criminal Procedure who can be detained therein and apprehended as the accused for trespassing the house, dwelling and against whom the criminal legal proceedings can be initiated by invoking Section 154 of the Code of Criminal Procedure and investigation, started under Section 156 ibid by setting the law into motion. However, the grievance generally voiced against the Police is that no sanctity is provided to Chaddar and Chaar Diwari. These sections do not empower the Police to enter the house through stretched Auto Ladders and scaling over the walls without making demands to enter the house through doors and by insulting, humiliating the male, female occupants authorized to use the premises. I would record that no free hand can be given to the Police to misuse the provisions of Sections 47 and 48 of the Code of Criminal Procedure according to its whimsical hypothesis in the Islamic Republic of Pakistan.

33. It would be proper to record that the Code of Criminal Procedure was enforced on 1.7.1898 in English language during the British Rule. It would not be out of place to express that even at that time for the enforcement of the procedural law more than a century before the provisions in the said Sections 47 and 48 were incorporated for the protection of "Chaddar and Char Devon" about which the credit is being taken these days for the last about two to three decades by the Executive Authorities including the Police having the political patronage. After one century the aforesaid law has not been changed. Pakistan is an Islamic State whereinbetter values are expected to be maintained. Our Constitution, 1973 provides the safeguard of the honour and prestige of the citizens. Under Article 4 of the Constitution, 1973 "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, where ever he may be and of every person for the time being within Pakistan". It is provided in Article 9 that no person can be deprived of life or liberty save in accordance with law. According to Article 14 of the Constitution, 1973 the dignity of man and, subject to law, the privacy of home, shall be inviolable and no person will be subjected to torture for the purpose of extractingevidence. It has been provided in Article 25 of the Constitution, 1973 that all citizens are equal before the law and are entitled to equal protection of the law. If some member of the family has shown dis-respect to the rule of law by committing any offence of eu-dinary, sensational or heinous nature that does not mean that other family members can be put to the ordeal of facing dis-honour, dis-respect and harassment in the alleged manner. In this regard the aforesaid kind words of the Holy Prophet (p.b.u.h.) contained in the last Sermon (Khutba-tul-Hajja-tul-Wida) have to be again referred to that "henceforth, 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". Consequently the police is not competent toenter the house of a fugitive from law wherein he is not present/living while his nears and deara are putting up who have no concern with the occurrence and not liable for ths occurrence.

34.          The home of a person is the best shelter and place of peace for him and against the provisions of law no person can be vexed while he is staying therein. Even the birds also reach their homes/nests in the evening. The peace of the home cannot be isturbed by the police or by any stranger, Nobody can enter therein without permission. It is commonly expressed and observed that "East or West, Home is the Best". In one's home, to enjoy privacy is the right of the inmates. We take this to mean freedom from human interference by any means, but there are other elements of equal importance; protection from physical harm and restraint, freedom  romdirection and peaceful enjoyment of one's surroundings. Arbitrary arrest at home interferes with peaceful enjoyment and involves  irection which also is an invasion of privacy and the same cannot be allowed without factual, legal and formal justification as expounded supra.

35.          At this stage it would be illuminating to refer to the word of the Right Honourable Alfred Denning one of the Lords Justices of his Majesty's Court of Appeal in England published in the Journal titled as "Freedom under the Law" by Stephen and Sons Limited, 1949. The relevant portion at page 103 is reproduced as follows:-

"The problem before us today is not so clear-cut. It is more subtle, as is to be expected in a more complex society; but it is in principle the same, and it must be solved by the Courts and not by a civil war. For today the executive have great powers over the lives and property of every one of us. No one will dispute that the powers exist, for Parliament has granted them, but the question is what remedy the Courts provide if they are mistised or abused.

AN ENGLISHMAN'S HOUSE IN HIS CASTLE.-Let us consider, then, the power to enter a man's house against his will; for this is a power which has been greatly extended of late. It is a power which we must watch with care, because, next to our personal freedom, we value most the freedom of our homes. 'An Englishman's house is his castle' we say; and our feelings about it were well summed-up by the great Earl of Chatham when he said "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail-its roof may shake-the wind may blow through it-the storm may enter-the rain may enter-but the King of England cannot enter-all his force dares not cross the threshold of the ruined tenement". These proud words take their legal origin from Magna Carta, when King John promised that no free man should be disseised of his free tenement except by the law of the land. The freedom of an Englishman's house was there put on an equal footing with his personal freedom."

36.   The aforesaid positive words cannot be ignored as no free man should be deprived of the comfort of his very tenement except the law of the land, which in such like cases are flagrantly being violated through  transgression of authority by the police officers. Legally the freedom of a house is on an equal fooling with the freedom of a person. It can, therefore, safely be deduced that if the Right Honourable Alfred Denning of United Kingdom believes in the aforesaid type of golden ideas why the same should not be adopted and followed in Pakistan and why much importance in negative form is granted to Sections 47 and 48 of the Code of CriminalProcedure enforced on 1.7.1898 during British Rule and can be amended in accordance with the religious commands of Islam, if not deleted or omitted.

37,   However, no law allows to the police to interfere or by-pass the codified law. It would be proper to record that about the infringement of right, suffice it to express and observe that it is equipped with inherently in­ built fetters rendering it subservient to reasonable restrictions imposed by law. If it is the duty of any acquaintance or a relative of ugitive from law not to give shelter to the absconding accused, it is also the duty of the police not to enter in an autocratic manner the house on the basis of the figment of thebrain coupled with the power/authority being enjoyed as reproduced supra. At this stage it can be expressed that iu a hot pursuit of a fugitive from  law/absconder the police can enter the house of any person without demand of admittance i.e, without permission  wherein the fugitive from law enters and intends/desires to obtain the shelter. In tSiat eventuality no objection is made or raised by inmates who may be even the close relatives of the absconding accused. Rather the help is provided and the cooperation is extended to the police whenever such an occasion arises. Even the persons of the vicinity not only take part alongwith the police officials towards thesuccess of such a hot pursuit, the bold and brave acts of the members of the Police are approved and appreciated who have to perform their duty at the risk of their lives as the persons effecting the hot pursuit of the fugitive from law may have to face the firing at the hands of the said type of accused causing injuries or even death.

38. Section 100 of the Pakistan Penal Code is relevant in the matter according to which the right of private defence of the body extendeds to causing death or any other harm to the assailant if the offence which occasions the exercise of the right fee of any of the descriptions enumerated therein which are six la cumber and according to the description enumerated as sixthly "Aa assault with the intention of wrongfully confining a person under the circumstances which may reasonably cause him to apprehend that he be unable to have recourse to the public authorities for his release". Further under Section 101 Pakistan Penal Code, if the offence be not of any of the descriptions enumerated in the last preceding section (Le. Section 100 Pakistan Penal Code) the right of private defence does not extend to the voluntary causing of death to the assailants but does extend under the restrictions nsentioned in Section 99 Pakistan Penal Code to the voluntary causing to the assailant of any harm other than death. In the instant case in the comments the Police Officer has expressed that he has no intention to harass the petitioner and his family members. However, thefiling and pendency of this writ petition at the instance of Noor Muhammad petitioner is not a part of luxrious litigation who by incurring the expenses of the writ petition had to spend the amount to maintain the dignity and honour of the family which fact is also relevant to give weight to the grievances voiced through the filing of this writ petition. As such it can safely M be expressed that there was no justification on the part of the respondent-SHO to enter the house of the petitioner as alleged by him and to shower insult on his family who has transgressed his authority. It shall not be out of place to record that it has become a common feature that at the direction of the Police Officers the subordinates and particularly the Police Constables cross the limits by trespassing the houses of the citizens as is in the present case. They trespass the houses of the citizens without any search warrant. As projected abovtj under the Islamic Law and according to the Code of Criminal Procedure as well as the Pakistan Penal Code without factual justification, without authority, without getting the permission of the flccuBant through the making of demand of admittance (entry) or without a search warrant no stranger including a Police Officer can enter the house of any person. The Police Officers should keep in mind that the citizens areshowing the restraint and broad mindedness in such matters of the transgression of authority on their part. Otherwise, as expressed above, if any stranger including the member of the police force is confined in the house is beaten or injured in such circumstances projected in this writ petition, the inmates of the house/dwelling place would not be committing any offence. These are the days when the police should know that the people are becoming right conscious and the violation of legal and human rights shall not be tolerated by the citizens any more. Such a working of the police not only offends the law, the same is also violative of the religious commands, legal ethics and human rights. Such type of police working is breeding-up hatred amongst different groups/community/persons of country on one side and the Police on the other side and it is one of the reasons that law and order situation is worsening. In such like cases the working of some of the Officers/Officials of the Police Department is tarnishing its name as well as the working of the Executive as a whole.

39.        The fact about the presence of the absconding accused in the house is not mentioned in the case-diary and at its own whims and choice the entry is made in the house of his relatives, friends as well as nears and dears. The odd hours are chosen to enter in the house. Some times the walls are scaled over. On some occasion the iron auto-ladder, which can be stretched, is used to enter the house through boundary wall to the annoyance of occupants. The womenfolk are not allowed to retire keeping in view the statutory provision incorporated in Section 48 of the Code of Criminal Procedure and the custom, practice of the family. In such state  faffairs at times some mischief mongers, through impersonation in police uniform, trespass the houses and commit he dacoities when the neighbours do not dare to meddle in the matter lest the police may not feel offended and/or they may not be injured/killed. The result is that it plays havoc with the fortune of the family. In such circumstances it can be expressed that the aforesaid type of working of the police is also responsible for worsening the law and order situation. It is also breeding-up hatred amongst different groups/communities on the one side and the police on the other side which is not a happy sign keeping in view the individual and collective patriotic feelings. I am, therefore, tempted to express that the right to shelter is not a state charity nor condescending grace but basic share, as of right, in the happiness of humanity. Rather shelter is the root of happiness. The State, accordingly, is under a Constitutional mandate to create conditions in which fundamental rights guaranteed to individuals/citizens could be enjoyed by all. Thus this Constitutional Court is in a safe position to watch and pass/issue the writ in favour of the aggrieved party which is none else than the petitioner. The virtues and working of the Constitution are based on those who are called upon to work it and happen to be a good lot. It means that he police shall have to avoid such a working in the larger interest of the Nation. The Police have coined the method for putting the pressure upon the absconding accused for surrender by showing their entry in the house(s) of his relative(s) on the ground of his presence therein who is shown to have made good his escape even though strong contingent of Police is said to be present. A case under Section 216 Pakistan Penal Code is registered to justify their action simply to vex the concerned relativesinvolved in the criminal case. They are arrested, but are not bailed out even though the said Section 216 Pakistan Penal Code is bailable as their arrest is not shown in the Daily Diary of the Police Station in violation of Section 44 of the Police Act, 1861. The parents, brothers, sisters etc., are pressurized and tortured in illegal, absurd and abnoxious manners. However, an important aspect is ignored by the police that disobedient sons, brothers of the type of Abdul Sattar absconding accused of the murder case are source of insult, degradation and inconvenience to the family where many problems creep-up and ooz out due to their being out-laws. Even the sisters of thefugitives from law are divorced by their respective spouse. The engagements of the sisters and brothers are broken, unfolded. If the family is educated the brothers and sisters studying in the educational institutions or pursuing respectable professions(s) have to face the sarcastic rebukes who even feel the difficulty to sit in the social gatherings and thus cannot find a respectable place in the society. On the one hand the petitioner stands ruined due to the bad habits of his accused son Abdus Sattar while on the other hand he alongwith other family members is being subjected to cruel and illegal treatment of the Police who, as such, is entitled to the discretion of thisConstitutional Court.

41. 1 would be glossing over an important aspect of the matter in hand by expressing that a person, amble or female, cannot be detained in any Police Station or at some other place unless he or she is required in a cognizable and non-bailable offence whose arrest is to be shown in the Daily Diary of the Police Station under Section 44 of the Police Act, 1861 and under Rule 22.49(h) of the Police Rules, 1934. However, the arrest is not shewn even though due to a wrong entry in the Daily Diary a police officer can be dismissed under Rule 22.50 (para 1) of the Punjab Police Rules, 1934. Under Section 491 of the Code of Criminal Procedure the High Court has been empowered to issue the direction of the nature of a habeas corpus and pass the order that the person within the limits of its appellate criminaljurisdiction be brought up before the Court to be dealt with according to law and also that a person is illegally or improperly detained in public or private custody within such limits be set at liberty. Under Article 199(l)(b)(i) the High Court may on the application of any person make an order directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is being held in custody without lawful authority or in an unlawful manner. Section 100 of the Code of Criminal Procedure empowers any Magistrate of the First Class or any Sub-Divisional Magistrate to issue search warrant about the recovery of any person whose confinement amounts to an offence who after recovery sLall be procuded before the concerned Magistrate and who may make suchorder as in the circumstances of the case seems proper. Thus without any legal justification no person can be detained by the police as agitated in the instant matter as neither petitioner and family members are named in any FIR nor their names have been mentioned in the daily diary of Thana. It is a matter of common knowledge that illegal detention of the citizens by the police has become an order of the day. Inspite of the legal restraint/check the police is travelling on the same path with good speed. These days the police, whose duty is to protect the life and liberty of the citizens and claim to be Mohafiz, is itself usurpring the same and has become a source ofinconvenience for them which type of grievance has been voiced through the filing of this writ petition. To deprive a person of his liberty is a serious matter being violative of law, justice and fair play to which an exception has to be taken. All the citizens in urban or rural areas are entitled to the protection of this Court. Thus the petitioner and his family members cannot be asked to attend the Police Station due to the mis-deed/offence committed by his son Abdus Sattar who was fugitive from law at the time of the bringing of this writ petition.

42.     Blackening of the faces of the accused and their family members/relatives, making them to ride on donkeys, getting their head, beard, eye brows, eye lashes etc. shaved, their old and young male and female members to sit in Police Station, their mis-handling creating shock- wave lawful condition, taking off their shoes and making them to stand for hours in cold as well as in scorching heat according to the available season, dragging them out bare-footed with their hands cuffed and handkerchief inserted in the mouth etc. etc. are some of the other degrading methods adopted by the police through transgression of authority which are not permissible by religious commands, law of the land and norms of legal ethics as well as human rights. The aforesaid degradation of the human-beings  re offences in the criminal field for which private complaints in terms of Section 190 of the Code of Criminal Procedure Code can be filed and even civil suits for recovery of damages can be instituted. However, the important and ticklish question to be posed is as to who can dare do so ? The police is a disciplined force to which training is imparted and the aforesaid type of recalcitrant and autocratic attitude in criticized and objected to by the innocent aggrieved victims. Such a working of the police cannot be termed to be in accordance with the Injunctions of Holy Qur'an, Sunnah of the Holy Prophet (p.b.u.h.), dignity of a man and according to the public conscience. It is really Islamic in Islam which is the State Religion of Islamic Republic of Pakistan  having  the  Constitution,   1973 with  the  aforesaid Islamic background wherein and whereby Islamic Ideology has to be preserved and followed ?

43.    It is the will, discretion of the citizens to contact the Police Officers posted in a Police Station or their Superior Police Officers for the redressal and removal of their difficulties. The police may summon the person(s) whenever any matter is referred for report, viz; like the issuance of licence of fire arm/establishment of 'Sarai', cinema, holding of unfair etc. etc. as provided by the relevant Rules incorporated in the Police Rules, 1934. The power to investigate the criminal cases is incorporated in Chapter XXV of the Police Rules, 1934 Volume-Ill. The Investigating Officer can join any concerned person in the investigation to reach at the true, right conclusion as his fair and impartial investigation in terms of Section 4(1)1/160 to 166 of the Code of Criminal Procedure, 1898 is the foundation of Justice to beadministered by the Court. For the purpose of the emergence of the true picture in the matter the relevant Rule 25.2. is reproduced as under :--

"25.2 (1). The powers and privileges of a police officer making an investigation are detailed in Section 160 to 175, Criminal Procedure

Code,

Powers of Investigating Officers.--An Officer so making an investigation shall invariably issue an order in writing in Form 25,2, (I) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and the date and time of his departure from, the place to which he is summoned. The duplicate of the order shall be attached to the case diary.

(2) No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily

detained.

(3). It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to •discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."

44 As expressed above the Investigating Officer can summon any person concerned with the occurrence/case to join the investigation and in this regard he has to summon the person through a summons/notice. He cannot act and proceed in an autocratic manner as being projected in this judgment which revolves around the common complainant of the citizens in the matter. In Chapter XXV of Police Rules, 1934 the specimen of the Proforma to summon any person during the investigation has been provided/incorporated with has made out that on the whims of a Police Officer, without reasons, no person can be summoned by the police. Even the date, time for appearance and time for departure after conclusion of investigation to his extent has to be mentioned/noted therein, a copy of which has to be provided to that person. The specimen of the relevant Proforma is being reproduced as under for proper appreciation of the subject in hand:--

"POLICE RULES. 1934.

INVESTIGATION.

FORM NO. 25.2. (1).

ORDER TO REQUIRE ATTENDANCE AT INVESTIGATION UNDER SECTIONS 160 AND 175, CRIMINAL PROCEDURE CODE.

NAME                              Son of                                  Caste,

Resident of

Whereas the presence of the aforesaid person is necessary for the purpose of enquiry into the offence reported to have been

committed under Section—-at Police Station............ ; therefore the

said person is hereby directed to appear before the undersigned at

(place hour..,........ date......... )  there to  give  such  information

relating to the said alleged offence as he may possess.

Signature and Designation of issuing Police Officer.
Date                                        Hour

Note :--

......mentioned in this order attended             on        at               and

was permitted to leave on

at               at.

Dated____________ .