Saturday, 19 May 2012

Use of Weopons and Firearms on Marriages

PLJ 2009 Lahore 584

[Rawalpindi Bench Rawalpindi]

Present: Kazim Ali Malik, J.

IFTIKHAR AHMAD and others--Petitioners

versus

AKHTAR ALI S.H.O. and others--Respondents

W.P. No. 75 of 2009, heard on 20.2.2009.



Criminal Procedure Code, 1898 (V of 1898)—



----Ss. 173 & 170--Constitution of Pakistan, 1973, Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 294 & 109--Marriage Functions (Prohibition of Ostentations Displays and Wasteful Expenses) Ordinance, 2000--Punjab Marriage Functions (Prohibition of Ostentations Displays and Wasteful Expenses) Act, 2003, Scope--Punjab Marriage Functions (Prohibition of Ostentations Displays and Wasteful Expenses) amended Act, 2006, Scope--Marriage functions--Arranging or watching live dance inside the house--Non-cognizable offence--Validity--Arranging or watching live dance inside the house does not fall within the ambit of any of the provisions of the laws--Marriage functions would show that decoration of street, road or public park or any place other than a house where marriage ceremony is being held, with lights or illumination; firing by fire-arm or exploding crackers or other explosive devices, displaying fire works, displaying dowery to the public eye and serving meal, to the guests except one dish with hot and cold soft drinks have been prohibited--All the offences under the laws are non-cognizable--Arranging or watching dance in a marriage ceremony does not fall within the purview of any of the penal provisions of law regulating marriage functions--SHO illegally apprehended 25 accused persons.

      [Pp. 587 & 588] A & B



Pakistan Penal Code, 1860 (XLV of 1860)—



----S. 294--Constitution of Pakistan, 1973, Art. 199--Applicability--Marriage function--Vague and general allegation--Obscene songs or obscene acts--Arranging or watching live dance inside the house--According to S. 294, whoever does any obscene act or signs or utters any obscene song in or near any public place is liable for the offence--SHO made a vague and general allegation that the dancing girls were singing obsence songs and doing obscene acts literal meanings of the word `obscene' is something offensive to modesty or decency--Question of--Whether a certain song is obscene or not, the song itself has to be looked into--Determination--Unless and until actual words are used before the Court it cannot be said that the song was obsence or not--Accused persons could not be held liable under penal provision of law for live dances inside the house.

      [Pp. 888 & 589] C, D & E



Constitution of Pakistan, 1973—



----Art. 14--Fundamental right--Constitutional jurisdiction--Conduct of SHO--Dignity of man and privacy of home are fundamental and inviolable right of citizen u/S. 14 of Constitution--When a right is safeguarded by Constitutional guarantee, it is called `Fundamental Right' because by doing so it is placed beyond the power of all organs of the state, to act in violation of it--Scuh a right cannot be taken away or suspended or abridged except in the cases expressly provided by Constitution--High Court in exercise constitutional jurisdiction has always jealously guarded fundamental rights of the people and, therefore, an attempt on the part of police receiving remuneration from government exchequer for protection of life, liberty, property and honour of the citizens, to defame or disgrace the accused persons cannot be and should not be lightly ignored on any ground--SHO accompanied by a heavy contingent of police force intruded into the privacy of petitioner, injured his dignity and that of his guests and thus disturbed the peace and tranquility of his domestic life--Such conduct which must be deprecated.   [P. 589] F & G

Right of Privacy--

----Islamic Law attaches great importance to right of privacy--The Holy Quran and Sunnah has prohibited the act of intrusion into any one's house to find out commission of any offence, even the offence of zina--In Sura "Al-Nur" Versus 27 and 28 of the Holy Quran, privacy of home is recognized as inviolable right of the people. [P. 589] H



Pakistan Penal Code, 1860 (XLV of 1860)—



----Ss. 96 & 294--Constitution of Pakistan, 1973, Art. 199--Constitutional Jurisdiction--Duty of Court--Scope of--Question why a search warrant had not been obtained by S.H.O.--Performing of watching live dance in marriage ceremony inside a walled house--High Court while exercising constitutional jurisdiction or inherent powers always judge acts and omissions of government functionaries touching fundamental rights critically in order to protect the people from harassment and blackmailing and also to keep the officials within their allotted sphere.     [P. 590] I



Administration of Justice--

----Duty of--Under the law of the land, which is obviously subject to the injunction of Islam, the persons in authority are required to keep an eye over the subject and watch them like parents watch their children--Mutual trust between the person in authority and the subject particularly the less important section of society, is an important pillar of the state--In order to secure trust of the commoners, the government functionaries must be friendly and kind towards them--It is the mandate of Quranic Injunctions that weaknesses of the people should not be exposed or made public--Police violated and disregarded all legal and moral norms of administration of justice.   [P. 591] K



Pakistan Penal Code, 1860 (V of 1860)—



----S. 294--Constitution of pakistan, 1973, Art. 199--Quashment of FIR--Live dance--Offence of--Live dances are being telecast on government run T.V. and private T.V. channels--No one can deny that with the permission of the govt. live dances by female artists are being performed and watched in the stage dramas--There is no restriction in shooting film songs at public places--Now-a-days sequential and situational songs are integral part of script of the drama--If shooting of dances and songs at public places in a film and performing such acts in stage dramas is allowed, then why the petitioners and their 20 co-accused were arrested by the SHO while watching live dance in a marriage ceremony inside their walled house--SHO was fully aware that they were not liable u/S. 294 PPC--Alleged obscene act had not been done at any public place--Registration of case, apprehension of accused, seizure of camera, and preparation of challan by the police and declared as illegal, void, without lawful authority and thus amenable to Constitutional jurisdiction and inherent power of High Court--FIR quashed.    [Pp. 591 & 592] L, M & N



Sh. Ahsan-ud-Din, Advocate for Petitioners.

Syed Hasnain Kazami, A.A.G. with for Respondents.

Date of hearing: 20.2.2009.

Judgment

Akhtar Ali, S.H.O. Police Station Hassan Abdal, Distt. Attock got registered case F.I.R. No. 267 dated 19.12.2008 under Section 294 of the Pakistan Penal Code, 1860 read with Section 109 of the same code, with Police Station City Hassan Abdal, with an allegation, in brief, that on 18.12.2008 at 11.15 p.m. he alongwith police officials was present in Ghausia Chowk, Hassan Abdal in connection with normal patrol duty when he received spy information that dancing girls had been performing live dance and doing obscene acts to the annoyance of others, in a marriage ceremony being celebrated inside the house of Iftikhar Ahmad, petitioner-accused located in Mohallah Chaudhrian, Hassan Abdal City. The raiding party consisting of 30 police officials (one Inspector, one Sub-Inspector, two A.S.Is. and 26 Constables including three lady Constables), headed by the S.H.O. raided the house of Iftikhar Ahmad, petitioner-accused and observed that two dancing girls identified as Sonia and Neelam were singing obscene songs and doing obscene acts before 23 participants of the ceremony including the petitioners herein. The S.H.O. arrested the dancing girls and 23 male accused persons after drawing a complaint with an observation that they all had violated provisions of Marriage Functions Ordinance. The above complaint by the S.H.O. was received by Abdul Rasheed, Sub-Inspector, Police who drew up the F.I.R. in-question under Section 294 read with S. 109 P.P.C. against 25 accused persons. Investigation of the case was made over to Sajjad Ahmad, Sub-Inspector, who prepared rough site-plan, got detained 25 accused persons in judicial lock up and then placed the file before Akhtar Ali, S.H.O. for preparation of final report under Section 173 Cr.P.C. The S.H.O. who had conducted the raid, arrested the accused persons and seized the video camera with which the live dances were being filmed, prepared the final report under Section 173 read with Section 170 of the Code of Criminal Procedure, 1898. Before submission of challan in Court, the five petitioners/accused persons filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan read with Section 561 of the Cr.P.C. for quashing of the F.I.R.

2.  In the opinion of the S.H.O. the accused persons had violated the provisions of Marriage Functions Ordinance. I have minutely gone through the Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000; Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 and the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Amended Act, 2006 on the subject and would say with certainty and without fear of contradiction that arranging or watching live dance inside the house does not fall within the ambit of any of the provisions of the above said laws. A combined examination of the laws governing the subject of marriage functions would show that decoration of street, road, or public park or any place other than a house where marriage ceremony is being held, with lights or illumination; firing by fire-arm or exploding crackers or other explosive devices, displaying fire works, displaying dowry to the public eye and serving meals to the guests except one dish with hot and cold soft drinks have been prohibited. All the offences under the above said laws are non-cognizable. Only an officer or agency notified by the Government can lodge a complaint in writing about contravention of penal provisions of the law before the Court. When confronted with the above said state of affairs, the learned Law Officer very frankly and rightly conceded that arranging or watching dance in a marriage ceremony does not fall within the purview of any of the penal provisions of the law regulating marriage functions. Hence, it is not difficult to conclude   that   the   S.H.O.  illegally  apprehended  25  accused  persons despite the fact that they did not violate the provisions of above said laws.

3.  The Sub-Inspector, who drafted  the F.I.R. on the above said complaint by the S.H.O. applied the provisions of Section 294 P.P.C., which is reproduced below for facility of reference.

Section 294 P.P.C:

"Obscene acts and songs. Whoever, to the annoyance of others,

(a)   does any obscene act in any public place, or

(b)   sings, recites or utters any absence songs, balled or words, in or near any public place,

Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine or within both."

A bare perusal of the above quoted provision of law would show that whoever does any obscene act or signs or utters any obscene song in or near any public place is liable for the offence. The case in hand does not qualify the above said legal test. Admittedly, the dancing girls had been performing live dances in a marriage ceremony inside the house of Iftikhar Ahmad, petitioner accused. It is evident from the F.I.R. and the rough site-plan prepared by the investigating officer that the police party raided walled house of the accused at night. With no stretch of imagination, the house of Iftikhar Ahmad, accused can be termed or treated as a public place. Further more, the S.H.O. made a vague and general allegation that the dancing girls were signing obscene songs and doing obscene acts. Literal meanings of the word `obscene' is something offensive to modesty or decency. In order to determine as to whether a certain song is obscene or not, the song itself has to be looked into. Unless and until actual words used are before the Court it  cannot be said that the song was obscene or not. The F.I.R. statements of the witnesses and the final report under Section 173 Cr.P.C. do not disclose as to what obscene act had been done by the dancing girls or as to what a obscene song had been sung by them. Mere self assertion of the S.H.O., that the dancing girls were singing obscene songs or doing obscene acts could not be made the basis of prosecution of 25 accused persons for the offence under Section 294 P.P.C. Needless to add that self-assertion by the complainant S.H.O. and a few Members of the raiding party is not the substitute of evidence. At the cost of repetition, it is note worthy that dong obscene act or singing obscene song at a public place is a condition precedent for prosecuting the wrong doer under Section 294 P.P.C. which is missing in this case. For the sake of arguments, if it is admitted for  a  moment  that  the  dancing  girls  were  signing obscene songs in a marriage ceremony inside the house of Iftikhar Ahmad, accused even then they were not liable for the offence under Section 294 P.P.C. With the assistance of the learned law Officer. I have gone through the Pakistan Penal Code and could not find any penal provision of law, whereunder the accused persons could be held liable for watching live dances inside the house. No offence whatsoever is made out against the accused persons even if the story set up in the F.I.R. is believed in toto.

4.  Dignity of man and privacy of home are fundamental and inviolable rights of the citizens, which have been guaranteed under Article 14 of the Constitution of Islamic Republic of Pakistan. Here I must say that a `Right' is `an interest' recognized and protected by law. It can be created and enforced either by a Constitutional provision or by an Act of the Parliament. When a right is safeguarded by Constitutional guarantee, it is called `Fundamental Right' because by doing so it is placed beyond the power of all organs of the State, to act in violation of it. Such a right cannot be taken away or suspended or abridged except in the cases expressly provided by the Constitution. This Court in exercise of Constitutional jurisdiction has always jealously guarded fundamental rights of the people and, therefore, an attempt on the part of police receiving remunerations from Government exchequer for protection of life, liberty, property and honour of the citizens, to defame  or disgrace the accused persons cannot be and should not be lightly ignored on any ground. The S.H.O. accompanied by a heavy contingent of police force intruded into the privacy of Iftikhar Ahmad, petitioner-accused; injured his dignity and that of his guests and thus disturbed the peace and tranquility of his family/domestic life. This is a conduct, which must be deprecated.

5.  There is yet another aspect of the matter. Apart from the Constitution of the country or law of the land, the country we live in being Islamic Republic, the Holy Qur'an and the Sunnah of the Holy Prophet (S.A.W.) are the supreme law and every organ of the State is duty bound to seek guidance from the Islamic principles as enshrined in the Holy Qur'an and the Sunnah. The Islamic Law also attaches great importance to right of privacy. The Holy Qur'an has prohibited the act of intrusion into any one's house to find out commission of any offence, even the offence of zina. In Sura "Al-Nur" Verses 27 and 28 of the Holy Qur'an privacy of home is recognized as inviolable right of the people. The translation of the above-noted Verses by Mr. Abdullah Yousaf Ali reads as under:

"27. O ye who believe. Enter not houses other than your own, until ye have asked permission and saluted those in them. That is best for you in order that ye may heed (what is seemly).

28. If ye find none in the house, enter no until permission is given to you, if ye are asked to go back go back. That makes for greater purity".

By conducting raid without search warrant, the Police disregarded the Quranic injunction as well as law of the land. The action by the S.H.O. is not only illegal and without lawful authority, but is also offensive to passion, kindness and mercy. Here I must say that perverted sense of authority drove the S.H.O. towards crude and brute misuse of official position. There is no answer to the question as to why a search warrant in terms of Section 96 Cr.P.C. had not been obtained by the S.H.O. if in his opinion performing or watching live dance in a marriage ceremony inside a walled house, was an offence. This Court while exercising Constitutional jurisdiction or inherent powers always judge acts and omissions of Government functionaries touching fundamental rights critically in order to protect the people from harassment and blackmailing and also to keep the officials within their allotted sphere.  The learned Law Officer attempted to argue that the S.H.O. raided the house of the accused persons in good faith as the accused persons were engaged in immoral acts if not illegal. This argument depicts traditional police officer's perspective, in whose opinion apprehension of 25 accused persons from inside their house at night while watching live dance in a marriage ceremony served as deterrence. Here lies the main problem. I am pained to say that the police officers have been treating sins or immoral acts as cognizable offences. It is inapt and detrimental conduct of the criminal justice system as a whole, which calls for reform, otherwise the unholy tendency to exercise authority over and above the law in a self styled manner, may erode the system. This case might have featured on the S.H.O's and the D.P.O's performance sheet as a crime dealt with an iron hand successfully and worthy of a place in the category of good police work, but I am unable to approve of the police action being violative of law.

6.  The accused persons are human beings like the 30 members of police party headed by the S.H.O. As human beings they suffer from weaknesses and disabilities. They might have committed sin or indulged in immoral activity while watching dance in a marriage ceremony inside their house intentionally or unintentionally or innocently or even foolishly without realizing the enormity of their deed of misdeed. The S.H.O. possessed with official authority was required to use his head, heart and hands with restraint and self control. While entering house of the accused at midnight the S.H.O. and the members of raiding party should not have forgotten that while being possessed with authority over the people, they were subject to the supreme sway and rule of Allah, the supreme Lord. What a pity, the S.H.O. took cognizance of the sin allegedly   committed   by   the   accused   persons   for  which  they  were answerable before the supreme Lord on the day of judgment. The S.H.O. not only made himself liable for an action on judicial and administrative side, but also invited wrath of Allah Almighty. No one, howsoever high in this world and possessed with power or authority can never be free from the need of mercy and compassion from Allah Almighty. The S.H.O. chose to desert the golden principle of forgive and forget and hurriedly decided to punish the 25 accused persons for their alleged immoral act being proud of his official position and authority. Such a conduct rather misconduct by a person in authority is not going to be of much help in the administration of justice. The merciful Allah has fixed and determined rights and duties of each one in the Holy Qur'an as explained through the instructions of the Holy Prophet (S.A.W.) Under the law of the land, which is obviously subject to the Injunctions of Islam, the persons in authority are required to keep an eye over the subject and watch them like parents watch their children. Mutual trust between the person in authority and the subject, particularly the less important section of society is an important pillar of the State. In order to secure trust of the commoners, the Government functionaries must be friendly and kind towards them. It is the mandate of Quranic Injunctions that weaknesses of the people should not be exposed or made public. The police violated and disregarded all legal and moral norms of administration of justice and unnecessary dragged 25 accused persons including two young girls in litigation. Here, I must add that the police officers seized of the matter lowered prestige of their office by scandalizing the accused persons without realizing that scandal-mongers have never been treated with respect in the society.

7.  This is a question of common knowledge that live dances are being telecast on Government run T.V. and private T.V. Channels. No one can deny that with the permission of the Government live dances by female artists are being performed and watched in the stage dramas. There is no restriction in shooting film songs at public places. Now a days sequential and situational songs are integral part of script of the drama. If shooting of dances and songs at public places in a film and performing such acts in stage dramas is allowed, then why the petitioners and their 20 co-accused were arrested by the S.H.O. while watching live dance in a marriage ceremony inside their walled house. While arresting 25 accused persons from inside the house, the SHO was fully aware that they were not liable under Section 294 PPC and that is why he drafted the complainant Marriage Functions Ordinance, without disclosing as to which provision of the law had been disregarded by the accused. It became a case of the SHO versus the Moharar, when the latter draw up FIR under Section 294 PPC despite the admitted position that the alleged obscene act and not been done at any public place. In the circumstances, registration of case, apprehension of accused, seizure of camera,  etc.  and  preparation  of  challan  by  the  Police are declared as illegal, void, without lawful authority and thus amenable to Constitutional Jurisdiction and inherent powers of this Court.

8.  For what has been discussed above, I am of the opinion that the petitioners and their co-accused did not commit any offence under any law of the land. Allowing the police to investigate the case or to submit challan in the Court would amount to abuse of the process of law. I, therefore, allow this petition and quash the F.I.R. in-question with costs.

9.  A copy of this judgment may be sent to the Inspector General of Police, Punjab, for its circulation amongst all the D.P.Os and the S.H.Os. in the Province for their future guidance.

(N.I.)      FIR accused.


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