' The appellant filed criminal petition for special leave to appeal and the same was admitted and converted into criminal appeal to consider the following point: "Once the trial Court decided to summon the respondents as accused persons than any other order opposed to the earlier could not be passed without recording of some evidence and on the same material two contradictory orders could have been 'passed."
2. Brief facts of the case are that on 15-5-1991 one Sufi Muhammad Hassan son of Mian Muhammad Mohsan lodged F.I.R. No,205 of 1991 at Police Station, Hujra Shah Muqeem against the respondents, which was cancelled on 15-12-1991. The F.I.R., was lodged on the allegation that the respondents were present in the house of Wali Muhammad to commit illegal and immoral act and when the complainant along with others reached the spot and peeped through the door hole, the respondents were lying in semi-naked condition on a single cot. It was further alleged that two bottles of wine were also lying there. Both of them were caught hold of and higher authorities were also informed on telephone whereupon Assistant Commissioner and DSP, Depalpur came and took away the respondents along with them for legal action. As the F.I.R., was cancelled, the appellant filed complaint under section 294 read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) in the Court of Illaqa Magistrate, who committed the same to the Court of Sessions Judge. It was entrusted to Additional Sessions Judge, Okara. The learned Additional Sessions Judge referred the matter under section 203, Cr.P.C., to the Magistrate who after recording evidence submitted his report and the learned Additional Sessions Judge after receiving the report summoned respondents through boilable warrants for 9-5-1993. The respondent submitted an application under section 265-K, Cr.P.C., or 10-7-1994, which, was accepted by the learned Additional Sessions Judge, Okara vide order, dated 25-10-1994. He found the charge against the respondents of groundless. Both the respondents were discharged from their bail bonds. Aggrieved by the above said order the appellant has filed this criminal appeal.
3. It is contended on behalf of the appellant that there was sufficient material on record before the learned Trial Court, but the learned Trial Court erred in accepting the petition filed by the respondents under section 265-K, Cr.P.C., and the impugned order, thus, suffers from patent illegality. He has placed reliance on PLD 1992 Karachi 65.
4. Conversely, the learned counsel for respondents contended that under section 265-K, Cr.P.C., the accused can be acquitted at any stage and there is no illegality committed by the learned Court below while acquitting the respondents. In support of above still contention the learned counsel has referred 1995 PCr.LJ 424, 1997 PCr.LJ 973 1993 SCMR 423 and 1998 SCMR 1840.
5. I have heard the learned counsel for parties at some length and have also perused he record.
The F.I.R., was lodged by the Sufi Muhammad Hassan son of Muhammad Mohsan on 15-5-1991 and the same was cancelled on 15-12-1991. The complaint was filed on 5-5-1992 which remained pending for full one year and accused were summoned on 14-4-1993. From the above resume it is clear that the F.I.R. Was lodged by a different person and the present appellant was shown as a witness in the said F.I.R. The appellant claims to be a member of Aljehad Society and Islam-i- Moashara'. Admittedly the occurrence had not taken place in public place and the allegation of complainant is that when the complainant and others entered into the room they found the respondents in compromising position. It is, however, not disclosed that under what authority the complainant and others entered into the house and then on opening the room of the house the respondents were allegedly found in compromising position. It is also not mentioned that whether the room was open when they reached at the spot. There is absolutely no bar contained under section 249-A or 265-K, Cr.P.C., that the Court cannot acquit of and accused persons after recording the preliminary evidence because the words used in the section are 'at any stage'. The authorities referred by the respondents also support this contention. Whereas, the authority cited by the learned counsel for appellants is not traceable. As held in PLD 1993 Karachi 67 that the privacy of home, subject to law has acquired Constitutional status and is an inalienable right under Article 14 of the Constitution which must be zealously guarded by Courts of law.
6. In the light of the above discussion the impugned order, dated 25-10-1994 passed by the learned Additional Sessions Judge suffers from no illegality and infirmity and the present appeal has no force. It is, therefore, dismissed.