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Civil Petition for Special Leave to Appeal No. 852 of 1981, decided on 29th August 1981.
(On appeal from the judgment dated 25‑7‑1981 of the Lahore High Court, Lahore in Writ Petition No. 3652 of 1981).
------S. 10 read with Constitution of Pakistan (1973), Arts. 199 & 185 (3)‑Leave to appeal‑Woman accused not stating before Police during investigation as to her having been married with male accused‑Reliance; placed by petitioner's counsel on affidavit of accused stating to have been married to each other as well as on affidavit of woman accused's father to same effect‑Affidavit of alleged vakil of bride also relied upon to substantiate plea of nikah‑Held: Not possible either for High Court or Supreme Court to start . a parallel inquiry into matter at such stage when case ready to be sub mitted to trial Court and all relevant evidence yet to be examined High Court, held, rightly refused to interfere with such a case and petition for leave to appeal entirely misconceived.
Rana Abdur Rahim Khan, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) for Petitioner.
Taj Muhammad Lunga, Advocate Supreme Court for Respondents.
Date of hearing : 29th August, 1981.
A case has been registered against Mst. Maryam Bibi (the petitioner's sister) and Ghayyur Ahmad, his alleged brother‑in‑law, for the offence of Zina under the Zina (Enforcement of Hudood) Ordinance, 1979 and the investigation by the Police into the matter appears to have been completed.
According to the petitioner, the lodging of the F. I. R. and the registra tion of the case is mala fide and all this has been done on account of the enmity of respondents 2‑3. In fact, no case is made out against the accused as they are husband and wife; having been married on 29‑6‑1981. Consequently, the report lodged on 9‑7‑1981 by respondent No. 2 that Mst. Maryam Bibi (sister of the petitioner) and Abdul Ghayyur Ahmad had committed zina and the case registered in persuance thereof has no legal or factual foundation. The petitioner, accordingly, filed a writ petition before the Lahore High Court (W. P. No. 3652/81) to quash the above‑mentioned case.
The learned Judge in the High Court summoned the Investigating Officer, who stated that the challan in the case was ready and was being submitted to the Court. As regards, the contention of the petitioner that the case under the Zina (Enforcement of Hudood) Ordinance would be mala fide because Ghayyur Ahmad and Mst. Maryam Bibi are husband and wife, it was observed that the Police Officer had read out the statement made by Mst. Maryam Bibi before him and recorded by him on 9‑7‑1981 but in that statement Mst. Maryam Bibi had not said anything about her having already been married to Ghayyur Ahmad. It was, therefore, not possible to bold that the instant case or its investigation were mala fide. The petition was accordingly, dismissed. Hence this petition for leave to appeal.
Rana Abdul Rahim Khan, learned counsel for the petitioner, relied upon the affidavit of Ghayyur Ahmad and Mst. Maryam Bibi, that they are husband and wife, as well as the affidavit of the father of Mst. Maryam Bibi, that he had married his daughter with Ghayyur Ahmad, that the case had been concocted against his daughter and son‑in‑law on account of the enmity of respondents 2‑3. The affidavit of Mehr Shah Muhammad, who was Vakil of the bride, was also relied upon to substantiate the plea that the nikah had been validy and legally solemnised. It was further submitted that the S. H. O. was mixed with the respondents and was illegally supporting them.
We have given our best attention to the case and would observe that it is not possible either for the High Court or this Court to start a parallel inquiry into the matter at this stage. The case is ready to be submitted to the trial Court and all the relevant evidence can be examined by it. The High Court was, therefore, right in not interfering with such a case and petition for leave to appeal to challenge this order of the High Court entirely misconceived.
The result is that this petition is hereby dismissed.
petition dismissed.
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