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(On appeal against the judgment dated 13‑11‑1982, of Appeal No. 80/I. of 1981 by the Federal Shariat Court at Lahore).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑

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S. 10‑Constitution of Pakistan (1.973), Art. 185(3)‑Leave to appeal Dissolution of marriage on 6‑12‑1979‑Man invoking constitutional jurisdiction of High Court for challenging dissolution and obtained order suspending decree of Family Court on 22‑12‑1979‑Man getting publish in newspaper notice and sending telegram to lady informing her further proceedings affecting decree by Family Court‑Lady contracting another marriage on 11‑4‑1980‑Contention that contract of marriage by lady at time when their marriage did not stand dissolved because of suspension of decree of Family Court by High Court brings her liable to S. 10, Offence of Zina (Enforcement of Hudood) Ordinance of 1979 hence full trial should have taken place under relevant law‑Held; service of notice having not been established either for recitals of complaint or from other material on record during course of investigation ‑Marriage having taken place after expiry of 3 months making allowance for a week after passage of decree‑Interim order of High Court suspending decree of Family Court emerging with order of dismissal thus original order dated 6‑12‑1979 stood restored‑There being no commission of offence in entering with such marriage by lady‑No interference called for, leave refused.

S. A. Saeed, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on Record for Petitioner.

Shujauddin Qureshi, Advocate Supreme Court for Respondents.

Date of hearing : 9th April, 1983.

The petitioner seeks leave to appeal against the dismissal is limine of his appeal by the Federal Shariat Court on 13th November,

1982.

The petitioner was the husband of Mst. Kishwar Sultana, respon dent No. 3, the marriage having taken place on 2‑6‑1975. The Family Court dissolved the marriage on 6th December, 1979. The petitioner invoked the constitutional jurisdiction of the High Court for challenging the decree of dissolution of marriage and obtained an order suspending the decree of the Family Court on 22‑12‑1979. He got published the notices in the daily 'Pakistan Times' and the daily 'Mashriq' and also claims to have sent a telegram at the known address of the respondent No. 3 with a view to inform her of further proceedings that had. taken place affecting the validity and effect of the decree of dissolution of marriage. Notwithstanding such notices and the effect of the order of the High Court the respondent No. 3 contracted a marriage on 11th April, 1980 with respondent No. 2. He thereupon submitted a complaint dated 29‑7‑1980 to the Superintendent of Police, Lahore on which a case was registered at the police station which was investigated and a challan was submitted under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 494, P. P. C. The respondents, accused in the case, submitted an application under section 265‑K of the Criminal Procedure Code for .their acquittal as according to them no case under the penal laws of the land was made out. The Additional Sessions Judge after examining the complaint and the record of the investigation accepted the application and held that "there is no probability of the accused being convicted in this case" and hence he acquitted them under section 265‑K of the Cr. P. C. Aggrieved by this order the petitioner preferred an appeal. The Federal Shariat Court did not agree with the Additional Sessions Judge in so far as hasty conclusions were drawn with certain persumptions with regard to the intimation to the Chairman Union Council by the Family Court within one week of its decision, and the want of service in appropriate time of the order of the High Court, but nevertheless it maintained the order of acquittal and declined to interfere with it on the ground that "from whatever angle the calculation is made to 'find out the date on which the decree can be said to be effective, it cannot go beyond the date on which the High Court had dismissed the petition." It was also held that "in strict Sharia the marriage was legal" and that "it will be a hyper‑technicality to say that the marriage was premature".

The learned counsel for the petitioner contended that the two respondents contracted a marriage at a time when their marriage did not stand dissolved because the decree of dissolution of marriage stood. suspended under the interim order passed by the High Court. As the earlier marriage between the petitioner and the respondent No. 3 was subsisting there could be no question of a second marriage and if another marriage was contracted the offence under section 10 of the Offence of Zina (Enforcement of Hadd) Ordinance, 1979 was committed. The petitioner has done all that could reasonably and possibly be done with regard to serving the notice on respondent No. 3 by publication in the newspapers, by sending a telegram and by informing the Chairman of the Union Council concerned. No greater responsibility could be laid on the petitioner in the matter. It was also contended that a full of the offence n petitioner had all the necessary evidence to prove offence because the prove the commission of the offence by them in violation of the Court's order and the law on the subject.

The trial Court has dealt with the matter at a stage when apart fro the complaint of the petitioner which was a fairly exhaustive document, the result and record of the investigation was also before it. The service of notice as a fact was not established either from the recitals of the complaint lodged or from the other material collected during the course of the investigation. Similarly there was nothing on the record to show that the Union Council had not been informed by the Family Court in accordance with the law requiring the communication to be sent within seven days of the decree by the Family Court to the Union Council. The marriage had admittedly taken place after the expiry of three months making allowance for a week after the passage of the decree. The interim order which temporarily interfered with the decree of dissolution of marriage merged finally with the order dismissing the appeal. After such dismissal the original order of dissolution of marriage passed on 6‑12‑1979 was restored and the marriage having taken place after 90 days thereof while such decree had the legal force and effect it cannot be said that there was commission of a criminal offence in entering into such a marriage. We do not consider that the view taken by the two Courts with regard to the result of the criminal prosecution is such as may require interference or further consideration by this Court. Hence leave to appeal is refused.

M. Z. M. Leave refused.

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