FIDA HUSSAIN and anothers vs Mst. SAIQA and others

' GHULAM RABBANI, J.---This appeal with leave of the court is directed against the order dated 4-10- 2010 which was passed by a learned Single Jude of the High Court of Sindh against the appellants.

2. Brief facts of the case are that Mst. Saiqa (respondent No,1), a School English Teacher had filed before the High Court of Sindh, Circuit Court Larkana, a Constitution Petition bearing No, S-1786 of 2010 under Article 199 of the Constitution against the appellants and others, inter alia, praying "that the Court be pleased to declare their action of harassment and entering the house of petitioner without any search warrant and lady police illegal/as an offence." She stated that her husband by name Nadeem Ahmad Larik used to keep company with some persons of questionable character and was therefore, not allowed to reside with and visit her (respondent No,1) and that she had learnt that against him a criminal case was registered. She alleged that on 16-9-2010 at about 11- 00 a.m. Both the appellants along with subordinate staff entered into her house where, beside her, her children, her mother and another woman by name Mst. Bhahul Khatoon were present; that they misbehaved with women folks, broke some articles of house, caused them harassment and attempted to drag the respondent No,1 out of her house, however, at that time, one Mazhar Hussain a shopkeeper in the locality came to their rescue; that the appellants, having made entry into her house, had also threatened that in case her husband, who was required in the case was not arrested, cases would be registered against her and her other family members. According to her, she attempted to lodge F.I.R. But her report was not received by the police.

3. The appellant No,1 filed written reply wherein, he denied allegations against him and stated, inter-alia, that husband of respondent No,1 was involved in Crime No, 174 of 2010 registered under sections 489-F, 506/2; P.P.C. And that the respondent No,1 had filed the case against the police officials as a pressure tactic to take undue advantage in favour of her husband. He explained that on the day of incident he had, in company of other staff of I.B. Police Station Darri, proceeded for investigation in another crime bearing No,180 of 2010 registered under section 302, P.P.C. Leaving Police Station at about 0700 hours and had come back at the Police Station on the same day at about 1700 hours vide Daily Diary Entry No,

41. In support he placed before the Court a copy of the Daily Diary along with his reply. Almost similar statement was made by appellate No,2 showing his business in another Crime No, 175 in which according to him he had arrested accused Khalid Khan whose remand was taken by him from the Court. Mashirnama of arrest of the accused so also copy of the remand order was submitted along with his reply to show his business in that crime.

4. We have heard both the appellants in person whereas none appeared on behalf of the respondents. Both the appellants in their submissions painfully stated that they were not heard, therefore, could not explain their side of case, though evidently present in Court and that it was quite distressful that they were punished without adverting to their replies put forth in defence buttressed well by documents. They stated that awarding to them harsher punishment was without first determining their guilt in accordance with settled principle of law and justice. They further stated that they had sought review of the impugned order specifically agitating that their side of the case put forward in defence supported by valid documents, was not considered while deciding the Constitution Petition and that matter involved disputed question yet, their request was turned down again without considering their case.

5. On examination of the material made available before us it becomes evident that the appellants had, in their replies (available at pages 23 and 45 of the paper book), specifically denied the allegations of respondent No,1 and in support had produced some documents noted above meaning thereby that matter involved disputed facts which for the purpose of determination required factual inquiry by recording evidence. It is well settled by way of plethora of case-law laid down by Superior courts that the High Court is not to resolve the disputed question of facts in exercise of constitutional jurisdiction under Article 199 of the Constitution. In the instant case, however, it appears that learned Single Judge proceeded to record statement of the respondent No,1 Mst. Saiqa on 4-10-2010 (available at page 29 of paper book). Both the appellants, who were present in Court, were, however, not provided an opportunity to cross-examine her and on the basis of her statement impugned order was passed same day, which is reproduced in extenso, as follows:-- "4-10-2010.

Mr. Kashif Noor Khan, Advocate for petitioner SIP Fida Hussain Langah, ASI Muhib Ali Mangi and Inspector Toufique Ahmed Sadhayo SHO Police Station Rehmatpur are present in person.

' Statements on behalf of DPO Larkana, SIP Fida Hussain Langah and ASI Muhib Ali Mangi have been filed, which are taken on record.

' Statement of petitioner Mst. Saiqa is also recorded. In her statement she has stated that respondent No,6 SIP Fida Hussain Langah and respondent No, 7 ASI Muhib All Mangi had entered into her house without any search warrant and made harassment, caused damages to house hold articles and insulted petitioner and other family members on the pretext that her husband was wanted to police in some criminal case. Above acts on the part of respondents Nos. 6 and 7 amount to excesses on the part by using their official status contrary to law. In the circumstances, DPO Larkana is directed to take departmental action against SIP Fida Hussain Langah and ASI Muhib Ali Mangi of Police Station Darri, Larkana, and submit such report to this Court within three days. The DPO Larkana is further directed not to assign any field posting to the said police officers for next five years. SIP Fida Hussain Langah and ASI Muhib Ali Mangi are directed to pay an amount of Rs,20,000 each to the petitioner as compensatory costs for causing damages in her house, and harassment. The DPO Larkana, is directed to recover such amount from them and deposit with Additional Registrar of this Court within three days, which may be given to the petitioner. It is however made clear that non compliance of this order shall follow contempt proceedings against DPO.

' SHO Police Station Rehmatpur, Larkana, (who is present in Court), and DPO Larkan, are directed to provide protection to the petitioner and in case of any mishap the concerned S.H.O. Of the area shall be responsible. Office is directed to send this order to all the concerned by Fax also.

' With these observations this petition stands disposed of."

' It appears that the appellants herein who are respectively SIP and ASI, Investigation Branch Police District Police Larkana, had moved Misc. Application No,7391 of 2010 seeking review of the above noted order, which was dismissed vide order dated 13-10-2010. Appellants requested that the afore-mentioned order passed in flagrant violation of settled principal of law be also set aside.

6. Be that as it may, impugned order shows that not a word was said about what was averred in statements of appellants, admittedly filed separately and kept on record. Equally, not a single word was said about the report of DPO Larkana, admittedly furnished and placed on record, as to what effect it was. The impugned order does not show that the appellants, who were present in Court, were heard. Only the statement of Mst. Saiqa, respondent herein was taken as a gospel truth and resultantly the appellants were punished vide order dated 4-10-2010. The appellants sought review of the order, however, it is quite evident from the order on review application passed by learned Single Judge that the grounds taken by the appellants were not considered by learned Single Judge at all and the application was dismissed for technical reasons.

7. Thus, having discussed the case hereinbefore, we find enough substance in the submissions of the appellants and hold that the order dated 4-10-2010 on Constitution Petition No 1786 of 2010 and the order dated 13-10-2011 on Miscellaneous Application No, 7391 of 2010 are not sustainable in the eyes of law. As a result, we allow this appeal and set aside both the orders with no order as to costs.

8. However, before parting, we deem it appropriate not to leave the respondent No,1 without remedy. She may approach the appropriate forum for relief as per law.