' Criminal Appeal No,223/L of 2003 filed by Mst. Rukhsana, Manzoor Ahmad and Mst. Khalida and Criminal Appeal No,259/L of 2003 filed by Muhammad Arshad will be disposed of by this single judgment.
2. All the appellants have been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to five years' R.I. With fine of Rs,10,000 and in default to further undergo S.I. For three months each by judgment dated 16-7-2003 of the Additional Sessions Judge, Faisalabad. The appellants were acquitted from the charge under section 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which is relatable to buying persons for the purposes of prostitution.
3. F.I.R. No,486, dated 22-8-2002 was registered under sections 10, 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Ghulam Muhammad Abad, District Faisalabad.
4. The learned trial Court framed the charge-sheet on 4th of December, 2002 against Mst. Naseem Wife of Muhammad Ashraf that she was running a brothel house and why she should not be tried along with others under afore-mentioned sections.
5. Evidence was recorded by the learned trial Court, which consists of P.W.1 Dr. A.R. Tahir Bari, P.W.2 Muhammad Amin M.H.C.-918, P.W.3 Lady Dr. Aneela Ashraf, P.W.4 Malik Nazir Ahmad, P.W.5 Muhammad Waris and P.W.6 Muhammad Tariq, Inspector/Investigating Officer. Learned trial Court acquitted some of the accused persons but convicted the present appellants under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to five years' R.I.
With fine of Rs,10,000 and in default to undergo further three months' S.I. As already pointed out all the accused persons were acquitted from the charge under section 14 of the Ordinance.
6. All the accused were examined under section 342, Cr.P.C. And they pleaded their false involvement in this case.
7. The case of the prosecution is that a raid was conducted on the house of Naseem Bibi the principal accused who was running a brothel house and accused Nos.1 to 8 mentioned in the charge-sheet were sent up to face trial in case F.I.R. No,486 of 2002, dated 22-8-2002 under sections 10, 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Ghulam Muhammad Abad, Faisalabad. Except the present appellants all other accused persons were acquitted including Mst. Naseem Bibi, who was the principal accused and was allegedly managing the brothel house.
8. Learned counsel for the appellants vehemently contended that the house in-question could not be raided without any search warrants, which was not obtained by the police and this fact is admitted in the statement of Investigating Officer (P.W.6) deposing that "I did not move any application to the Area Magistrate for procuring such warrants. The private witnesses were not residents of the street where the place of occurrence is situated". It is contended that the case is doubtful as no inhabitant of the locality was a witness and in any case the search warrants to raid the house having not been obtained, all the proceedings are nullity in the eye of law and this aspect has not been positively considered by the learned trial Court. Reliance is placed by the learned counsel on Mst. Noshi v. The State 2000 M LD 302 to contend that raid was conducted by the Police Officer without obtaining the search warrants in advance and this violated the provisions of section 103, Cr.P.C. Further reliance is made on State through Advocate-General v. Bashir and others PLD 1997 SC 408 that requirements of section 103, Cr.P.C. Must be observed and two members of the public of the locality should be associated with the proceedings unless efforts were made by the police and search witnesses were not available. Safeer Hussain Qureshi v. The State 1992 PSC 346 is also quoted that "for the search of a premises the attendance of two respectables of the locality is a legal necessity whereas there is no such legal requirement for carrying out the search of a person". It was also held in Muhammad Saleem and another v. The State 1998 PCr.LJ 2321 by the Full Bench of the Federal Shariat Court that in case of raid by the Police Officer without any search warrants even it was prostitution den, Police Officer could not enter without proper search warrants. This is the declared case-law on the point as supported by the case-laws referred to above.
' In the present case no search warrants have been obtained by the police and their action to enter the private house is not only highly objectionable but also not legally sustainable. The police cannot erode the privacy of the citizens in a highly arbitrary and despotic manner. This action of the police cannot be countenanced by any system of law otherwise there will be chaos. Every citizen has a right to enjoy the freedom of his house subject to reasonable restrictions. But in this case police acted without any authority to raid the house without any search warrants. This aspect of the case has not been considered by the learned trial Court in its proper perspective.
9. For the reasons stated above, the impugned judgment, dated 16-7-2003 is not legally sustainable and both the appeals filed by the appellants are accepted. They shall be released forthwith, if not required in any other case. The bail bonds of Mst. Rukhsana and Mst. Khalida appellants are discharged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.