1. ORDERSARDAR MUHAMMAD NAWAZ KHAN, J.- The petitioner seeks to challenge the validity of order of Additional Tehail 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 and 294 APC was registered at Police Station Afzalpur an a report of SHO of the said Police Station. It was alleged in the report that the complainant (SHO 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 '.Is 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 Haq, Constable Perveez Akhtar No. 1854 and Muhammad Ashraf Constable No. 2015. The door was opened and petitioner Allah Ditta and Mst. Jamils 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 Zulqarnaan (SHO) 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 Doctor to ascertain the sexual potency of Allah Ditta, commission of Zina on the persons of Mst. Jamils Butt and alcoholic effect on the person of Allah Ditta. They were referred to concerned 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 challaned both the accused before Additional Tehail Court of Criminal Jurisdiction Mirpur. They are facing trial before the said Court. The trial Court found allegation under Section 10 ZHA as falls, however the said Court charge-sheeted them under Sections 18 ZHA and 294 APC.3. An application under Section 249-A Cr.P.C., was submitted by the petitioner before the trial Court for dismissal of cases 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-l-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.
2. 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 thesubject. , ,7. It appears from the record that the complainant (SHO) 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 lst Class Mirpur reads as under:- .J' ltJiJi?L.JSlL"-^ Si j^/JLt-So Uv9. 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 look on the provisions of law refeting to search warrant 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 issued a search warrant and the person fo 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 a general search or inspection. This provisions is attracted only where an inquiry trial or proceedings are already going on/further- more, >f 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 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.C, is applicable only to search of house suspected to contain stolen property, forged documents, bank notes/counter fait coins, obscene object intended to be circulated a distributed etc. Power under this section can be exercised only where an information and after s^ich inquiry, as he thinks necessary,has reasons to believe that such place is used (kv deposit or sale of stolen propertyNetc.12. Section 103 Cr.P.C, provides for safe-guards 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 thU 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 any thing necessarily linked there with is to be found in a place and further-more in this 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 provisions 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 housesearch 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 or publicisedas it shatters the foundation of the family where a female is accused in such crime. The human weakness should rather; be over-looked and ignored, unless committed at public place and becomes cause of concern from the society view point. This is what we learn from the teaching of Islam and the guid- lines for us through Holy Quran and Sunnah.17. It is also to be noted that there is no probablity 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 commend 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.18. With the above observations, the issuance of search warrant by the Extra Assistant Commissioner Mirpur (Magistrate lst 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 APC 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. 119/97 dated 15.10.1997 is also quashed. Consequently the accused persons in the aforesaid F.I.R, are acquitted.