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Criminal Revision No. 269 of 1974, decided on 1st March 1977.

‑‑ Ss. 268 & 290‑Conviction, propriety of‑Petitioners complained against for running a brothel in their house by offering their daughters for prostitution to visitors and allowing them to drink within premises of their house to great annoyance of neighbours‑Proceedings under Ss. 268 & 290, P. P. C., held, misconceived‑Law attracted in situation, held further, could be proceeding under Suppression of Prostitution Ordinance‑Convictions and sentences set aside, in circumstances.‑[Public nuisance].

M. Anwar Sipra for Petitioners.

Khurshid Iqbal for the State.

Late of hearing 1st March 1977.

Gulzar Ahmad alongwith his wife Balqees were tried under section 290 P. P. C. by Syed Nasir Ali Shah, Magistrate 1st Class. Bhalwal who vide his judgment dated 17‑8‑71 found them guilty and convicted and sentenced then, to pay a fine of Rs. 50 each or in default to undergo two months' R. I. each. Aggrieved against their conviction and sentence they filed an appeal in the Court of the learned Additional Sessions Judge, Sargodha who vide his judgement dated 30‑7‑73 maintained their conviction and sentence. A revision petition was filed by the petitioners against the judgments of the two Courts below which was admitted by this Court on 9‑5‑74.

2 The brief facts of the case are the one Vakil, a neighbour of these two petitioners moved the local police to take action against them as according to this complainant these two petitioners were indulging in the immoral activities , and were offering their daughters for the purpose of prostitution. It was .So further stated that a number of people with bad antecedents visited their house and used to drink there. The case was investigated by the police d they were ultimately challaned.

2‑A. A legal point was raised before the learned Sessions Judge that the police was not authorised to investigate a non‑cognizable offence and therefore the trial of these two petitioners stood vitiated. This point was considered and decided by the learned Sessions Judge against the petitioners as the learned sessions Judge relying on Sadan v. State (P L D 1965 B J12) found that such like investiga tion although unauthorised would hardly affect the trial, of persons who ultimately were challaned by the police before the trial Court. It is pertinent to note that the learned Sessions Judge did not advert to the merits of the case in appeal and also failed to consider whether the mischief of sec tion 290 of the Pakistan Penal Code was attracted in the case of petitioners. This appeal was disposed of only on this legal paint.

3. I have heard the learned counsel on behalf of the petitioners as well as counsel for the State and perused the record of the case carefully with their assistance. It has been contended on behalf of the learned counsel for the petitioners that the application of section 290 is misconceived as the offence for which punishment has been prescribed does not fall under section 268 or 290, P. P. C. It was further contended that the reading of section 268 will show that no offence is made out against the petitioners in this, case. It wag further submitted that the judgments of the two Courts below further suffer from misreading of evidence for the reason that although all the witnesses who appeared against these petitioners have admitted their enmity with them but the same has not been considered while assessing the guilt of the petitioners.

4. I have given my anxious thoughts to the contentions raised by the learned counsel for the petitioners and will reproduce section 268, P. P. C. as it would be useful to assess the strength of the contention so advanced, It runs as under:

"S. 268.‑A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or advantage."

In the instant case the complaint, which was made by Vakil complainant (P.W.1) was that the petitioners were in a way running a brothel in their house and were offering their daughters for prostitution to visitors who used to visit their house. The second grievance, which was made by the com plainant was that the people used to drink within the premises of their house which annoys him as well as the other neighbours In this respect the learned counsel for the petitioners argued that this act in itself digit not constitute any offence. In support of his contention he relied upon A I R 1950 Cal. 330. The complainant was supported by as many as 8 P. Ws. and controverted by two D. Ws. While going through the evidence of these P. Ws. I find that Shera (P. W. 2) had a positive motive to state against the petitioners as he admitted during the course of cross‑examination that the wife of Gulzar Ahmad petitioner that is. Balqees, now petitioner before me in this case, had filed a criminal case against his wife. Similarly he accepted that Vakil complainant (P. W. 1) was also locked into litigation with these two petitioners. Similarly P. W. 3 Bad accepted that he was brother‑in‑law of Vakil complainant though he denied the knowledge of any previous litigation between Vakil and the petitioners. Inayat Ali (P. W. 4) made a sort of general statement regarding the character of the petitioners and did not quote any instance of their immorality or any overt act, which brought their actions within the mischief of section 268 or 290, P. P. C. In cross‑examination he accepted that the petitioners were leading an immoral life for 12/14 years but he never chose to lodge a com plaint against them during that long period. The entire evidence on the record against the petitioners consists of general allegations and while going through this evidence one finds that it consists of certain interested persons who have played on the tune of Vakil (P. W. 1) who actually wanted that the petitioners should come to harm due to the previous strained relations with them. I am constrained to observe that this important aspect of the case has been completely ignored by both the Courts below and they have failed to believe the two D. Ws. who also belong to the same Mohallah and came forward to depose that the petitioner Gulzar Ahmad was a photographer and bears good moral character. Be that as it may, I cannot ignore a very im portant aspect of this case and that is that the main grievance of the complain ant in this case was that the petitioners were running a brothel. In that situa tion the law attracted in their case should have been proceedings under the Suppression of Prostitution Act and not action under section 290/268, P. P. C. Even if there would have been some evidence on the record to show that the petitioners were indulging in the act of prostitution I wonder how the conviction could have been brought against them under section 268/290, P. P. C. In view of this legal position I am of the considered opinion that both the Courts below have fallen into error by finding that the complaint made out against the petitioners fell within the mischief of the section for which they have been convicted.

5. In view of the above analysis of the prosecution evidence on the record as well as the misconceived application of section 290, P. P. C. against the petitioners I set aside both the orders of the Courts below and proceed t to acquit the petitioners. The fine, if paid by them, would be refunded to them.

Petition allowed.

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