' The petitioner seeks to challenge the validity of order of Additional Tehsil Criminal Court Mirpur dated 21-1-1998 whereby an application under section 249-A, Cr.P.C. Was disallowed by the said Court.
2. The facts are that a case under sections 10/18 Z.H.A. And 294, A.P.C. Was registered at Police Station Afzalpur an a report of S.H.O. Of the said police station. It was alleged in the report that the complainant (S.H.O. Police Station Afzalpur) received an information through reliable sources that a person who was drunk and was leading a gay life with the wife of Muhammad Ameen Butt at his residence. According to the report, the complainant after receiving this information, obtained a search warrant from the Allaqa Magistrate, entered the house of Muhammad Ameen Butt alongwith Head Constable Mahzarul Hach Constable Perveez Akhtar No,1854 and Muhammad Ashraf Constable No,2015. The door was opened and petitioner Allah Ditta and Mst. Jamila Butt were lying on 'charpai' in naked position. Mr. Allah Ditta accused was lying on Mst. Jamila Butt. They were kissing each and were seen busy in committing Zina. As. Per F.I.R., the complainant also felt alcoholic smell from the mouth of Allah Ditta. The complainant Chudhary Zulqarnain (S.H.O.) himself conducted the investigation of the case. The statements of police employees who were with him during house search were also recorded. Both the accused persons were referred to concerned Doctors to ascertain the sexual potency of Allah Ditta, commission of Zina on the person of Mst. Jamila Butt and alcoholic effect on the person of Allah Ditta. They were referred to concern Doctors on the very next morning i.e, on 15-10-1997. They were arrested at the mid-night of 14/15 October, 1997,. The medico-legal report about commission of Zina and drinking of wine were negative. However, the report pertaining to sexual potency of Allah Ditta was positive. The police concerned after completion of investigation challened both the accused before Additional Tehsil Court of Criminal Jurisdiction Mirpur. They are facing trial before the said Court. The trial Court found allegation under section 10, Z.H.A. As false however the said Court charge-sheeted them under sections 18, Z.H.A. And 294, A.P.C.
3. An application, under section 249-A, Cr.P.C. Was submitted by the petitioner before the trial Court for dismissal of case against him as there was no probability of convicting the accused in the case.
The application was disallowed by the trial Court vide its order dated 21-1-1998. This revision petition is to assail the validity of aforesaid order.
4. The learned counsel for the petitioner argued that the search of the house was made on account of an illegal warrant and the case registered against his client and co-accused warranted dismissal not the Court below failed to appreciate the relevant law on the subject. According to the learned counsel, section 96, Cr.P.C. Is not applicable to the facts of the case and moreover the Magistrate did not apply his mind while issuing the search warrant. As the house was searched without lawful authority, so the case registered against the petitioner and another co-accused being illegal act of police merited dismissal, the learned counsel argued.
5. The learned Additional Advocate-General while controverting the arguments of the learned counsel for the petitioner, argued that the application under section 249-A, Cr.P.C. Was rightly disallowed as the accused could be convicted in the light of the evidence on record.
6. I examined the record of the case and perused the relevant law on the subject.
7. It appears from the record that the complainant (S.H.O.) obtained a search warrant under section 96, Cr.P.C. From Extra-Assistant Commissioner Mirpur (Magistrate 1st Class), searched the house of Muhammad Ameen Butt and then registered the case against accused persons.
8. Now let us see whether or not the house was searched out under some lawful authority. The search warrant which was obtained from Magistrate 1st Class Mirpur reads as under:- {{ URDU TEXT}}
9. It appears from the contents of the search warrant that the same was issued under section 96, Cr.P.C.
10. Before arriving at some conclusion, it is felt proper to have a lot* on the provisions of law relating to search *arrant in Criminal Procedure Code. The relevant provisions which I could find in Cr.P.C.
Are sections 96,98,103 and 165. Section 96 (1), Cr.P.C. Provides a Court may issue a search warrant and the person to whom search warrant is directed may search and inspect in accordance therewith provided Court consider that the purpose of any inquiry, trial or other proceedings under this code will be served by a general search or inspection. This provision is attracted only where an inquiry trial or proceedings are already going on furthermore, if Court after applying its mind comes to the conclusion that search warrant is necessary for the purpose of such inquiry or trial of the proceedings it may order in that direction. In the instant case, the complainant (S.H.O.) obtained the search warrant first, searched the house and then by registering the case started investigation. It means that no inquiry, trial or proceedings were pending before obtaining the search warrant.
11. Section 98, Cr.P.0 is applicable only to search of house suspected to contain stolen property, forged documents, bank notes/counterfeit coins, obscene object intended to be circulated a distributed etc. Was under this section can be exercised only where an information and after such inquiry, as he thinks necessary, has reasons to believe that such place is used for deposit or sale of stolen property etc.
12. Section 103, Cr.P.C. Provides for safeguards against abuse of search warrant. There is another provisions in Criminal Procedure Code which deals with house search and i.e, section 165, Cr.P.C.
This section relates to investigation, Under this provisions of law, a police officer has to be seized of an investigation firstly and in aid of same he must have reasonable ground for his believe that anything necessarily linked therewith is to be found in a place and furthermore in his opinion the same has to be obtained without undue delay. He may search or cause search to be made for such thing. This section also qualifies the search to be made with reason to be recorded in writing by the police officer for the purpose. There are certain other provisions of search of a person wrongfully confined.
13. The comparative study of the above referred pfovisions of Cr.P.C. Shows that neither of these provisions covers raiding of a house to surprise any person engaged in sex. Again, there is no provisions of Cr.P.C. To issue search warrant on an information by some anonymous person.
14. The perusal of the order of the Magistrate in the instant case for house search reveals that the Magistrate neither applied his mind nor relevant provisions of law were followed.
15. Even otherwise, if we look into the matter with another angle, it seems to be illegal to make an in-road into the Constitutional guarantee of fundamental right of privacy of the house. The provisions of Cr.P.C. Have to be read in aid of Constitutional provisions regarding privacy of home.
In view of the matter, the warrant issued under section 96, Cr.P.C. Was without lawful authority and beyond the scope of this provisions.
16. There is yet another vital aspect of the case. The charges of Zina should not be casually brought to Court of publicised as it shatters the foundation of the family where a female is accused in such crime. The human weakness should rather be overlooked and ignored, unless committed at public place and becomes cause of concern from the society view point. This is what was learnt from the teaching of Islam and the guid-lines for us through Holy Qur'an and Sunnah.
17. It is also to be noted that there is no probability of conviction in this case. The complainant himself conducted the investigation and placed all those employees of police on the list of witnesses who acted directly under his command and subordination. The medico-legal report do not corroborate the prosecution story so it will be a futile exercise to produce male and female Doctors as they cannot go out of their reports they have already made. It is not possible to convict a person simply on the basis of the evidence of police who were party to the case and the same was investigated by the complainant and his subordinate team. As the search warrant obtained under section 96, Cr.P.C. Was illegal, the subsequent proceedings in shape of registration of a case and its trial have also become unlawful.
With the above observation, the issuance of search warrant by the Extra Assistant Commissioner Mirpur (Magistrate 1st Class) dated 14-10-1997 under section 96 Cr.P.C. Is held to be illegal and unwarranted without lawful authority. The subsequent action taken by police to register a case under sections 10/18, ZHA and 294, A.P.C. And the trial before Additional Tehsil Court of Criminal Jurisdiction Mirpur stand vitiated. The revision petition is accepted by setting aside the order dated 21-1-1998. The F.I.R. No,119 of 1997 dated 15-10-1997 is also quashed. Consequently, the accused persons in the aforesaid F.I.R. Are acquitted.
Revision .