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(a) Constitution of Pakistan (1973)‑‑--

----Art. 199‑Writ‑Petitioner (accused) summoned only for offence under S. 506, P. P. C. and not for offences of forgery and fraud alleged in complaint‑Order of summoning, held, not last word on question of guilt or otherwise of accused qua all allegations made in complaint‑Penal Code (XLV of 1860), S. 506.

(b) Evidence Act (1 of 1872)‑---

-‑‑S. 111‑Burden of proof‑Observations of lower Court regarding onus of proof (although, prima facie wrongly placed) being of no consequence due to both parties having led evidence‑Such approach, held, cannot be considered illegal and has no effect on appreciation of evidence.‑[Burden of proof].

Mian Abdur Rashid for Petitioner.

Nemo for Respondent No. 1.

Syed Waheed‑ur‑Rehman Gllani for Respondent No. 2.

Dates of hearing : 26th and 27th May, 1979.

An order passed by a learned Additional District Judge in appeal filed under section 14 of the West Pakistan Family Courts Act, setting aside the dismissal of a suit for jactitation of marriage filed by the respondent, No. 2 has been called in question through this writ petition.

2. The petitioner claimed that the respondent No. 2 was his wife. The respondent No. 2 denied the factum of nikah and marriage and instituted a suit‑ within about a month for jactitation of marriage, claiming therein that the alleged nikah was the result of deceit and fraud and that, in fact, she was never married to the defendant (petitioner herein). The petitioner in his written statement relied on the alleged nikah which, according to him, was duly performed by a nikah khan in presence of witnesses. The petitioner also relied on an affidavit alleged to have been sworn by the respondent No. 2.

3. Learned Judge, Family Court, dismissed the respondent No. 2's suit on 1‑7‑1976. In appeal however, the judgment and decree of the trial Court were reversed. The suit of the respondent No. 2 was decreed. Therefore, the petitioner has, through this writ petition, called in question the said appellate judgment.

4. Learned counsel for the petitioner has contended: that the learned lower appellate Court could not apply the principle underlying section 111, Evidence Act; that the respondent No. 2's father filed a complaint against the petitioner before a criminal Court for the offences allegedly committed by the petitioner regarding forgery and fraud relatable to the nikah but the learned Magistrate has summoned the petitioner to face trial only under section 506, P. P. C., that the discrepancy in the dates of the attesta tion of the affidavit and the nikahnama pointed out in the impugned judgment is due to some machination done from the respondent No. 2's side; and lastly, that the appreciation of evidence by the learned lower appellate Court is defective.

5. I have gone through the record. The appreciation of evidence by the learned lower appellate Court does not suffer from any infirmity, legal or otherwise. The learned Judge gave more than half a dozen reasons for disbelieving the petitioner's version and evidence qua the alleged nikah, including the one that the alleged affidavit purports to have been attested on 5th December, 1975 while according to the nikah‑khan the attested affidavit was produced before him at the time of the alleged nikah on 4‑12‑75. There does not appear to be anything wrong about noticing this most important flaw in the petitioner's case.‑ The original record has been seen. The dates on the alleged nikah and on the attestation are absolutely clear. The contradiction is so obvious that it could not be ignored. Moreover, the persons attesting the so‑called affidavit which was denied from the respondent No. 2's side were not examined by the petitioner as his witnesses.

6. As to the argument regarding the effect of pending criminal proceedings against the petitioner on the appreciation of evidence in this case, suffice it to observe that the learned Magistrate has not given any reason for not summoning the petitioner for offences of forgery and fraud and sum moning him only for offence under section 506, P. P. C. The evidence before the learned Magistrate is ‑ not on these proceedings nor can it be said that the order of summoning an accused is last word on the question of guilt or otherwise of the accused qua all the allegations made in the complaint.1 Beyond this, it would not be proper to make any comment on this aspect of the criminal case, which is still pending. It might prejudice some one.

7. The argument regarding application of section 111, Evidence A by the learned .lower appellate Court is also misconceived. The learned Judge after noticing the same observed that the onus of proof in this case despite the same having, prima facie, been wrongly placed) is of no consequence because "both the parties have led evidence". This approach of the learned Judge cannot be considered as illegal. Moreover, it has no effect on the appreciation of evidence which otherwise is unexceptionable.

8. None of the arguments of the learned counsel raised in support of this petition has any force. It is dismissed with costs.

Petition dismissed,

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