2017 PLP 407 (YLRN)

SHAHID HAMEED DAR, J.

Mst. Samina Shafi (appellant) has filed this appeal against the judgment of the learned trial court i.e. magistrate section 30, Lahore Cantt., passed by it on 6.7.2006, whereby respondent-Malik Israr Ahmad had been acquitted of the charge, on acceptance of an application under section 249-A Cr.P.C. moved by him during trial in case-FIR No.272/99, dated 5.6.1999, under sections 420, 468, 471 P.P.C. read with section 11 of the Offence of Qazf Ordinance No.VIII of 1979, registered at Police Station Qila Gujjar Singh Lahore. Initially, she did not array "The State" as a respondent, but she did it so through Crl. Misc. No. 2223-M/2015 on 5.6.2015. Resultantly, it was added to the list as respondent No.2.

2. The appellant reported the matter to the police through a written application (Exh.PA) whereby she contended that Malik Israr Ahmad (respondent No.1) was her maternal uncle, though not directly; he frequently visited her house with a bad intention; which she only got knowledge of when he joined by his friends illegally confined her innocent children at his house and started blackmailing her; he forced her to come to a mosque, where she went with a suckling child in her lap; she was made to sign an unfilled Nikahnama there; after she got her children back , she instituted suit for jactitation of marriage, which was still pending; Malik Israr Ahmad made it public that she was his wedded wife and that she lived with him as such, after having been divorced by her husband Muhammad Shabbir, she filed Writ Petition No.23921/1998 in Lahore High Court against the excesses committed by him, wherein Mr. Justice Ghulam Muhammad Qureshi (as he then was) directed the police to hold an inquiry into the matter; in the meanwhile, Malik Israr Ahmad being in league with his friend Musharaf Khan got issued a bogus certificate qua effectiveness of Talaq between her and her husband Muhammad Shabbir, from a Salsi-Council; he got the said Nikahnama, whereon he had forcibly obtained her thumb impressions, registered after adding names of the witnesses, Farooq Ali and Sajjad Ali Shah thereto; thereafter he accused her and her husband Muhammad Shabbir of leading immoral life and obtained a police report in this regard from Police Station Gulberg with the connivance of his friend Musharaf Khan; being a female, she could not frequently visit the offices, but she succeeded in getting some favour from DSP Civil Lines and ASP Cantt. Circle, who conducted an inquiry into the matter on the direction of SP Cantt, courtesy Lahore High Court and her contention was found correct, as report of handwriting expert was received 'in positive'; she concluded that Malik Israr Ahmad (respondent No.1), Farooq Ali Shah and Sajjad Ali Shah should be prosecuted for having committed the offence of blackmailing, forgery and Qazqf etc. Her application (Exh.PA) led to registration of case-FIR No.272/1999 (supra).

3. After necessary investigation, challan under section 173, Cr.P.C. was prepared against Malik Israr Ahmad and others and submitted before the court concerned for their trial in accordance with the law. They were indicted by the learned Judicial Magistrate, Lahore for offences under sections 420, 468, 471, P.P.C., to which they pleaded not guilty and claimed a trial. The prosecution was directed to adduce evidence against the accused. Mst. Samina Shafi (appellant) appeared as P.W.1 and she endorsed the contents of her written application (Exh.PA) in her testimony. Muhammad Shabbir son of Muhammad Siddique, the husband of the appellant/complainant, appeared as P.W.2, who tendered evidence in line with the prosecution case on 1.6.2005. Inspector Akhtar Muhammad Bhatti appeared as P.W.3, who stated to have recorded formal FIR (Exh.PA/1). Allah Yar 7478/HC (P.W.4) deposed about execution of proclamations in respect of accused Sahibzada Saeed-ur-Rehman and others on 23.2.2006. In the meanwhile, all five accused, Malik Israr Ahmad, Rehmat Ali, Tariq Zaman, Saeed-ur-Rehman and Muhammad Ibrahim, moved a petition under section 249-A, Cr.P.C. with the contention that suit for jactitation of marriage filed by Mst.Samina Shafi (appellant/complainant) had been dismissed by the learned Judge, Family Court on 18.6.2005 and suit for restitution of conjugal rights filed by Malik Israr Ahmad stood decreed in his favour on the same day through the same consolidated judgment. Learned trial court accepted the said application on 6.7.2006 and acquitted respondent-Malik Israr Ahmad of all the charges by referring to dismissal of Mst. Samina Shafi's suit for jactitation of marriage by the learned Judge, Family Court, Lahore on 18.6.2005 and decreeing of suit for restitution of conjugal rights filed by respondent Malik Israr Ahrnad through the same consolidated judgment, besides mentioning therein that appeal filed by the complainant-lady (appellant) against the judgment of the learned Judge, Family Court had also been dismissed by the learned Additional District Judge, Lahore on 8.5.2006.

4. The appellant, on one hand filed Writ Petition No.8538/2006 against the judgment of the learned Judge Family Court Lahore and that of the learned appellate court, before this court and on the other hand she filed the titled appeal against the judgment of acquittal passed by the learned trial court in favour of respondent No. 1 on 6.7.2006.

5. Learned counsel for the appellant has submitted that writ petition filed by the appellant against the judgment of learned Judge Family Court and the learned appellate court, has been allowed vide order dated 18.5.2015 by this court with the observation that the impugned judgments therein had been set aside and the suit for jactitation of marriage filed by Mst.Samina Shafi (appellant) decreed in her favour. Further submitted that very basis of the impugned order, whereby respondent-Malik Israr Ahmad had been acquitted stood dismantled, therefore, it may be set aside and learned trial court in the process may be directed to re-start and conclude his trial expeditiously. Learned counsel has placed on record an attested copy of the order of this court, passed in Writ Petition No. 8538/2006 on 18.5.2015.

6. On the other hand, learned counsel appearing on behalf of respondent No.1 has submitted that the titled appeal is barred by time, in fact by fifty seven (57) days, therefore, it may be dismissed being not maintainable on the question of time-limit. Further submits that the appellant rendered a statement on 27.9.2000 before the learned trial court, whereby she contended that she had compounded the offence and forgiven the accused so she had no objection if he was granted bail and acquitted of the charge; the appellant was restrained by her own words/conduct to file the titled appeal against the respondent.

7. Learned Deputy Prosecutor General Punjab candidly sided with the appellant's learned counsel by maintaining that efficacy of the impugned order stood vanished with the acceptance of Writ Petition No.8538/2006 filed by the appellant against judgment of the learned Judge Family Court and that of the learned appellate court.

8. After hearing the learned counsel for the parties and perusing the record, it is observed that the appellant moved an application (Crl.Misc.No.1753- M/2006) under section 5 of the Limitation Act read with section 151, C.P.C. for the condonation of delay together with this appeal, which was allowed by this court vide order dated 9.2.2007. This order held the field and remained unchallenged. The contention of the learned counsel for respondent No.1 as to maintainability of this appeal on the question of limitation is repelled being devoid of any force.

9. So far as the impugned order passed by the learned trial court is concerned, it mainly/exclusively revolves around the fact that suit for jactitation of marriage filed by Mst. Samina Shafi (appellant) and suit for restitution of conjugal rights filed by respondent-Malik Israr Ahmad against her had been consolidated by the learned Judge Family Court, Lahore and decided through a composite judgment on 18.6.2005, in terms that the suit for jactitation of marriage was dismissed and that of the restitution of conjugal rights was decreed in favour of Malik Israr Ahmad (respondent No.1), besides, it was also mentioned therein that appeal filed by the judgment-debtor had been dismissed by the learned Additional District Judge vide judgment dated 8.5.2006. It was the only argument, which resulted in acceptance of application under section 249-A, Cr.P.C. and resultant acquittal of respondent Malik Israr Ahmad on 6.7.2006. This very foundation has become tumbling down with the acceptance of Writ Petition No.8538/2006 filed by Mst. Samina Shafi (appellant) against Malik Israr Ahmad (respondent No.1) and others on 18.5.2015, whereby judgments previously passed in favour of respondent-Malik Israr Ahmad have been annulled and suit for jactitation of marriage decreed in favour of the petitioner-appellant. This particular situation necessitates annulment of the impugned order passed by the learned trial court in favour of respondent No.1 forthwith, which is accordingly done with the result, that the learned trial court shall take up the trial of the respondent-accused from the stage, where it had accepted application under section 249-A, Cr.P.C. on fast-track basis, so as to conclude it within five months, from the date of communication of this judgment, may it be on day-to-day basis.

10. The office is directed to despatch record of this case with a copy of this judgment to the learned trial court for necessary information and compliance.

11. This appeal stands allowed in above terms. YN/S-102/L Appeal allowed.