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Criminal Revision No. 25/1 of 1984, decided on 17th February, 1985.

‑‑‑S. 431‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(2)‑‑Criminal complaint filed under S. 10(2) of Ordinance VII of 1979 dismissed by Additional Sessions Judge' on two grounds; firstly that same was not first of all filed in Court of Magistrate as required under S. 190(3), Cr.P.C. and secondly that case was falling only under S. 494, P.P.C.‑‑Revision against‑‑Respondent allegedly contracting second marriage during period of Iddat‑‑Respondent pleading that earlier marriage between spouses having not been consummated no question of Iddat arose‑‑Question whether marriage had been consummated or not, going to root of case‑‑Ex parte decree of dissolution of marriage obtained by respondent on ground of option of puberty having been set aside and matter had to be decided on merits by Family Court‑‑Trial Court, held, did have a contentious matter before him to decide‑‑Trial Court, held further, failed to do what he was required to do according to law and passed an unjustified order‑‑Order passed by trial Court set aside‑‑However, proceedings stayed in view of rules laid down by Supreme Court in P L D 1984 S C 95 till decision of suit for dissolution of marriage by Family Court.

Muhammad Azam v. Muhammad Iqbal P L D 1984 S C 95 rel.

M. Bilal for Petitioner.

Fazal Elahi Siddiqui for Respondent.

Date of hearing: 17th February, 1985.

This is a revision petition challenging the validity of order passed by the learned Additional Sessions Judge, Sargodha, by which he dismissed the complaint filed by the petitioner under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The view taken by the learned Additional Sessions Judge was that (i) the criminal complaint could not have been filed directly before the Sessions Court as section 190(3), Cr.P.C. requires that a complainant should first of all do so in the Court of the competent Magistrate. (ii) The case of the parties falls under section 494, P.P.C. and not under the Ordinance VII of 1979.

3. Both the learned counsel are not in a position to support the view taken by the learned Additional Sessions Judge and do not feel the necessity of arguments on that plan. It is, however, submitted by the learned counsel for the petitioner that as the complaint had been filed on the ground that second marriage had taken place during the period of Iddat the trial Court ought to have taken the evidence of the parties to decide if the previous marriage had been consummated at all as stated by the respondent. It is argued that the case of the petitioner was that respondent Mst. Kaniz Fatima has been living in his house as his wife before she went back to her parents' house but respondent denied it.

4. The learned counsel for the respondent pleads that the earlier marriage between the spouses had never been consummated and a suit for dissolution of marriage had been filed on 10‑7‑1978 in exercise of option of puberty. He, therefore, argues that the question of Iddat did not arise in this case and the impugned order can be supported on that basis.

5. After hearing the learned counsel, we find that the trial Court did have a contentious matter to decide before it. The position taken by the parties shows that the question whether marriage had been consummated or not went to the root of the case. The trial Court also C knew that the ex parte decree had since been set aside and the suit for dissolution of marriage between the parties had to be decided on merit by the Family Judge. In these circumstances, he should have considered the rule laid down by the Supreme Court in Muhammad Azam v. Muhammad Iqbal P L D 1984 S C 95 and acted accordingly. As he has not done what he was required to do according to law and hap passed an order which is not justified in any way, we set aside the same.

6. The result is that the complaint of the petitioner shall be considered as if it is still awaiting decision before the trial Court. However, in order to save the parties from further unnecessary expense and worry we stay the proceedings in view of the rules laid down by the Supreme Court, in the case referred to above and direct that the proceedings shall be restarted on the move of one or the other party, after the suit of dissolution of marriage is disposed of by the learned Family Judge.

7. As the proceedings before the trial Court have been stayed we will appreciate of the learned Family Judge takes up this matter day to day and disposes of the same without any unnecessary delay.

8. The copy of the order shall be sent to the trial Court as well as the learned Family Judge.

S.A. Case remanded.

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