1987 PLP 1165 (SCMR)

‑‑S. 10‑‑Penal Code (XLV of 1860), Ss. 109 & 201‑‑Complaint by husband about commission of offence under S. 10 of Ordinance (VII of 1979) against his wife and institution of false complaint by accused persons against another dismissed after enquiry under S.202, Cr.P.C.‑ Leave to appeal there against refused by Federal Shariat Court‑‑Order impugned‑‑Plea raised that multiplicity of proceedings pending over matter and evidence led by complainant coupled with fact of pregnancy of respondent all made it necessary that respondents should have been summoned to stand their trial‑‑Complainant though not an eye‑witness of occurrence, had stated about virginity of his wife in spite of her marriage with him and of her getting pregnant outside wedlock before her Rukhsati taking place‑‑Statement of complainant not suffering from any infirmity or deficiency‑‑Complainant's statement at preliminary stage though not sufficient to prove offence, became sufficient when coupled with fact of pregnancy outside wedlock to make it a prima facie case justifying summoning of both accused to stand trial‑‑Held, it was proper for ends of justice that both accused respondents should have been summoned to stand their trial under S.10(2) of Ordinance (VII of 1979)‑ There being no material to implicate other respondents, order dismissing complaint so far as they were concerned, was maintained. M. Bilal, Advocate Supreme Court for Petitioner. M.Rashid Chughtai, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents. Mian Inamul Haq, Advocate Supreme Court for the State. Date of hearing: 4th March, 1987. SHAFIUR RAHMAN, J.‑‑ Leave to appeal was granted to the complainant Noor Zaman to examine the correctness of the order of Federal Shariat Court, dated 13th of April, 1986, refusing him leave to appeal against the dismissal of his complaint by the Additional Sessions Judge, Bhakkar, on 18‑12‑1985. Noor Zaman claimed to be the lawful husband of Mst. Allah Jawai, respondent No. 1, apart from being her cousin. His case was that they had been married on 29‑4‑1981 but Mst. Allah Jawai had remained a virgin as Rukhsati had not taken place and on his demand for Rukhsati the relations between the families had become strained and he was not on visiting terms with her. In June 1985, he learnt that she had pregnancy of six or seven months and on further inquiry found that she had been committing Zina and maintaining illicit relations with one Naseer. On this he instituted a complaint under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) read with section 201/109, P.P.C. on 1‑7‑1985 stating that he had complained to the police earlier about it but they had not taken any action. It was further alleged in the complaint that in order to cover up their misdeed Mst. Allah Jawai and Naseer had in conspiracy got instituted a complaint on 25‑6‑1985 charging one Rehma of having committed Zina‑bil‑Jabr with her thus accounting for her pregnancy: The complaint was sent for inquiry under section 202, Cr.P.C. and on receipt of the report from the Magistrate and after examining the complaint and a witness produced by him, the trial Court, by an elaborate order, dismissed the complaint. The Federal Shariat Court did not grant leave to appeal to the appellant against the dismissal of the complaint. Mr. M. Bilal, Advocate, the learned counsel for the complainant contended that the multiplicity of proceedings pending over the matter and the evidence led by the complainant coupled with the fact of the pregnancy of the respondent No. l all made it necessary that the respondents should have been summoned to stand their trial. It is further contended that Mst. Allah Jawai had on 25‑6‑1985 filed a complaint charging Rehma for having committed rape on her with the assistance of Noor Muhammad and Mst. Noor Jehan. There was then the complaint dated 1‑7‑1985 filed by Noor Zaman charging Naseer and others for committing Zina‑bil‑Jabr with Mst. Allah Jawai and finally there was a police case got registered by the brother of Mst. Allah Jawai after she had given birth to a child charging, as did Mst. Allah Jawai, Rehma and others for the offence but the police after investigation had sent up Naseer and others for trial on that report. Mr. Rashid Chughtai, Advocate the learned counsel for the respondents, on the other hand, has no evidence of the implication of Naseer or any other person named as respondent. Noor Zaman was indeed not an eye‑witness of the occurrence. All the same, he stated about the fact of the virginity of his wife in spite of her marriage with him and of her getting pregnant outside tile wedlock. To this extent, his statement suffered from no infirmity or deficiency. He charged Naseer and Mst. Allah Jawai for indulging in Zina on the basis of information received from others. At the preliminary stage, one witness was examined who stated about that fact though, as held by the trial Court, his statement at that stage may not itself be sufficient to prove the offence. Yet it was sufficient coupled with pregnancy of Mst. Allah Jawai outside wedlock to made out prima facie case justifying the summoning of the two to stand their trial. Mst. Allah Jawai in her complaint had also disclosed about her pregnancy and the rape committed on her five or six months earlier. The police case and the final report of the investigation are subsequent to the order of dismissal passed by the trial Court. It was, however, a fact' that at the time of dismissal of this complaint police case had been registered and investigation was in progress. In the circumstances, we consider that it was proper for the ends of justice that the respondents Mst. Allah Jawai and Naseer should have been summoned to stand their trial under section 10 (2) of the Ordinance. As there was a material to implicate the respondents 3 to 8 mentioned in the complaint of Noor Zaman, the order dismissing the complaint so far as they are concerned, is maintained. The appeal is allowed accordingly. M.I./N‑13/S Appeal allowed.