1985 PLP 123 (SCMR)

JUSTICE SHAFIUR RAHMAN, J.--The two petitioners claiming to be husband and wife seek leave to appeal against the judgment of the Federal Shariat Court, dated 24th of June, 1984 whereby their conviction under section 494, P.P.C. and under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was maintained. Admittedly the petitioner No.l Mst. Bashiran was married to Muhammad Hussain respondent No.l. In 1967 the respondent obtained a decree for restitution of conjugal rights against her. On 18th of May, 1974, the suit instituted by petitioner No.l seeking dissolution of marriage failed. It was her case that by a written document, dated 6-2-1979 the respondent had divorced her and that divorce had been acted upon as between the petitioner and the respondent. At a subsequent stage the petitioner No.l filed a declaratory suit regarding the efficacy of the divorce, its genuineness and had obtained an ex parte decree on 8th of July, 1982. However, the ex parte decree was set aside and the suit is still pending in the Court of Civil Judge, Karachi. In this background of their relationship the respondent filed a complaint against the two petitioners who were in the meantime married, under section 494, P.P.C. and section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. They were tried and convicted by the trial Court on 7th of April, 1984 and the same conviction and sentence was upheld by the Federal Shariat Court by its order, dated 24-6-1984. The learned counsel for the petitioners contended that in view of the pendency of a suit in the Court of Civil Judge which may ultimately go to the Family Court if the civil Judge is not already functioning as a Family Court the question of genuineness and the efficacy of the divorce is in issue. In view of the judgment given by this Court in Ghulam Azam's case P L D 1984 S C 95, the criminal trial should have been stayed. In any case, there is likelihood of a conflict of decisions. As the matter involved not only the relationship of the petitioner and respondent No.2 but also as between the two petitioners and the legitimacy of the children born out of this wedlock, the better course would have been to await decision of the civil litigation before convicting and sentencing the petitioners and thereby condemning them and their posterity for all time to come. We have examined the record and find that the effect of the pendency of the suit and its scope requires further consideration with a view to determine what possible effect it could have on the criminal prosecution of the two petitioners in the meantime and on their posterity. Leave to appeal is, therefore, granted. From the record we find that Mst. Sharifan had been keeping extremely bad health and even before the Federal Shariat Court, pending the hearing of her appeal, her sentence had been suspended and she had been admitted to bail. Keeping those factors in view, we suspend the sentence of the petitioner -No.l pending the hearing of this appeal and admit her to bail in the sum of Rs.10,000 to the satisfaction of the Ilaqa Magistrate, Karachi. M. Z. M. ???????????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.