2001 P Cr (PLP)

CH. EJAZ YOUSAF, J.

This appeal by special leave is directed against the judgment, dated 4-9-1999, passed by the learned Additional Sessions Judge-III, Mianwali whereby he has acquitted the respondents in Hudood Case No. 4 of 1998 from the charges under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance; 1979 (hereinafter referred to as "the Ordinance") read with section 34, P.P.C.

2. Facts of the case, in brief, are that on 8-9-1997 a private complaint under the aforementioned sections was filed by the appellant in the Court of Area Magistrate at Mianwali wherein it was alleged that the complainant had married one Ashfaq Ahmad son of Mian Mehdi, but her "Rukhsati" had not taken place. On 17-3-1997 when she, in order to answer the call of nature went out of her house, the respondents came on the spot and abducted her on gunpoint. They took her to an unknown place where respondent No. 1 namely; Said Rasool forcibly committed Zina-bil-Jabr with her and also obtained hex signatures on a plain paper. Later on, the complainant alongwith the respondents were arrested and a case was registered against them. Since the complainant was wrongly made accused in the said case, therefore, the complaint was tiled. Record reveals that in pursuance of the complaint respondents were summoned and accordingly charged to which, they pleaded not guilty and claimed trial.

3. At the trial, four witnesses were produced on behalf of the complainant. Whereafter, the accused/respondents were examined under section 342, Cr.P.C. In their statements, the respondents denied the charge and pleaded innocence. They, however, failed to lead evidence in their' defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C.

4. After hearing arguments of the learned counsel for the parties the accused/respondents were acquitted of the charges, as mentioned in the opening para. hereof.

5. It would be pertinent to mention here that the learned trial Judge while proceeding with the case in hand also continued to proceed with the challan' case which too, resulted in acquittal of the respondents, but the judgment delivered in that case was set aside by the Honourable Supreme Court of Pakistan on the short ground that the principles laid down by the Honourable Supreme Court of Pakistan in the case of Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 were not followed.

6. It has been, inter alia, contended by the learned counsel for the appellant that the impugned judgment is not sustainable because firstly; the learned trial Court in view of law laid down by the Honourable Supreme Court of Pakistan in Noor Elahi's case PLD 1966 SC 708, was not competent to simultaneously proceed with the challan as well as the complaint case and secondly; the procedure as laid down in Muhammad Azam's case PLD 1984 SC 95 was not followed. He maintained that since plea of valid marriage was taken in defence and the factum of Nikah was categorically denied by the complainant, therefore, in all fairness, the learned trial Court ought to have stayed the proceedings and directed the patties to get resolve the controversy, regarding valid marriage, by the Civil Court. He has further submitted that, in the circumstances of the instant case, since it was obligatory for the defence to prove the factum of Nikah, therefore, the conclusions drawn by the learned trial Court, in dismissing the complaint, were neither warranted nor sustainable.

7. Messrs Syed Abdul Aziz Shah, Advocate, learned counsel for the respondents and Shaukat Awan, Advocate, learned counsel for the State have candidly conceded and submitted that since procedure adopted by the learned trial Court in simultaneously proceeding with the complaint as well as challan case was patently against law as well as the procedure, therefore, the impugned judgment may be set aside and case be remanded to the trial Court for its decision afresh in accordance with law. They, however, submitted that, at first, parties may be afforded an opportunity to get the controversy, regarding factum of Nikah, resolved by a Civil Court.

8. We have given our anxious considerations to the respective contentions of the learned counsel for the parties and have also perused the entire record of the case minutely.

9. It appears that proceedings in the instant case were not carried out, in accordance with law, inasmuch as while conducting trial of the complain case learned trial Judge has neither bothered to stay the proceedings in the challan case nor has he afforded opportunity to the parties, to get the A controversy resolved, by a Civil Court of competent jurisdiction, as laid down by the Honourable Supreme Court of Pakistan in Muhammad Azam's case PLD 1984 SC

95. It would be advantageous to reproduce hereinbelow the relevant observations which read as follows:-- "The answer to sub-question No. 4(ii) is that as and when a confident honest plea of Nikah is raised in a bona fide manner, it is the duty of the trial Court to enquire about the parties' attitude towards its adjudication by the Court of exclusive jurisdiction. If the suit is already pending, it must be taken to its logical end even if certain amendments become necessary due to the criminal involvements. That being so the criminal Court would, as already held, stay the proceedings for a reasonable time and/or from time to time. This is permissible under section 344, Cr.P.C. If this can be done, it is a reasonable corollary thereof to ask the concerned party, if the suit has not already been instituted, to institute one. And there is nothing in section 114, Evidence Act that the necessary presumption shall not be raised regarding the failure or refusal to file the suit, namely that if instituted the patty concerned would have no chance of success. This will also serve as a test for the bona fides and genuineness of the plea." It would also be worthwhile to mention here that the principle, articulated by the Honourable Supreme Court of Pakistan in Noor Elahi's case is that challan as well as complaint cases cannot be proceeded with simultaneously and proper course is .to take up the complaint case first and stay the proceedings in the challan case. It has been further enunciated therein that while proceeding with the complaint case witnesses listed in police challan should al, o be examined as Court witnesses under section 540, Cr.P.C., so that they can be cross-examined by both the parties and decision could be arrived at, by the Court, after proper consideration of the entire material available on record and relied upon by the parties. The rule laid down in Noor Elahi's case has been affirmed by the Honourable Supreme Court in the following cases:-- (1) Mst. Rasoolan Bibi v. The State and another 2000 SCMR 641, (2) Mumtaz and 3 others v. Mansoor Ahmad and another 1984 SCMR 221 and (3) Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361, PLJ 1980 SC

168. It would not be out of place to mention here that a Division Bench of this Court in the case of Mst. Naziran v. Saifal and others reported as 1998 PCr.LJ 1689 was also pleased to set aside judgment of the lower Court, when it was found that, in conducting trial, procedure laid down by the Honourable Supreme Court of Pakistan in Noor Elahi's case was not Since in the instant case trial Court has committed a material irregularity by not following the procedure laid down by the Honourable Supreme Court of Pakistan, as well as, by this Court in the aforementioned judgments, therefore, there is no escape from remand of the case. Consequently, the impugned judgment, dated 4-9-1999, passed by the learned Additional Sessions Judge-III; Mianwali is set aside and the case, with consent of the parties, is remanded to the trial Court for its decision' afresh, in accordance with law, with the direction that at first, the parties be given an opportunity to get the controversy, regarding validity of, Nikah/marriage, resolved by a Civil Court of competent jurisdiction as per principle enunciated by the Honourable Supreme Court of Pakistan in Muhammad Azam's case or if the needful is not done within a reasonable time then to proceed with the trial of the case as per procedure/law as laid down by the Honourable Supreme Court of Pakistan in Noor Elahi's case. Q. M. H. /M. A. K./31/FSC Order accordingly.