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Criminal Petition No. 19-R(S) of 1984, decided on 28th October, 1984.

(Against the judgment and order dated 26-3-1984 of the Federal Shariat Court in Criminal Appeals Nos. 73/1 and 74/1 of 1982.)

--Art. 203-F--Offence of Zina (Enforcement of Hudood) Ordinance (VII) of 1979), S. 10(2)--Zina--Marriage of accused lady with (complainant) husband stood dissolved when she obtained ex parte decree on 11-10-1980--Husband got her back on 23-12-1979 on assertion of sub sisting marriage with her and a child was born soon after in January 1980--Husband made no grievance as long as wife had not obtained herself decree for dissolution of marriage on 11-10-1980--Husband, thereafter filed complaint against lady and another man that by living together they were committing Zina--Oral evidence of complainant in background of such litigation, held, was rightly held by Federal Shariat Court to be not of such quality or character as to justify conviction of accused persons under S. 10(2) of Ordinance, 1979--Benefit of doubt was rightly given to accused--Leave to appeal refused.--[Benefit of doubt].

Muhammad Yousaf Saraf, Advocate Supreme Court and M. Afzal Siddiqui, Advocate-on-Record for Petitioner.

Karam Ellahi Bhatti, Advocate Supreme Court for the State. Date of hearing: 28th October, 1984.

The petitioner seeks leave to appeal against the judgment of the Federal Shariat Court dated 25-3-1983 whereby the appeal of the respondents against their conviction under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) was accepted and their conviction and sentence was set aside.

The complainant had, it appears, repeated rounds of litigation with the respondents particularly with his former wife Mst. Nek Bakht respondent. To make the matter short, Nek Bakht obtained dissolution of marriage ex parte against the petitioner on 11-10-1980. In earlier proceedings before the District Judge on 23-12-1979 Muhammad Rafiq the respondent had pronounced divorce on Nek Bakht and she had returned to the petitioner and soon after gave birth to a child in January 1980. After ex parte decree and dissolution of marriage obtained by her on 11-10-1980 the petitioner again approached the Sessions Judge with a complaint that the two respondents were committing Zina and living in adultry. The learned Sessions Judge who tried the respondents after appraising the oral evidence held that the offence under section 10(2) of the Ordinance was proved. He convicted both and sentenced them to 5 years' R.I. and a fine of Rs.1,000 or in default to further undergo six months' simple imprisonment. They were also sentenced to whipping numbering 30 stripes which was to be carried out in a public place to be fixed by the Court. Aggrieved by their conviction and sentence the two respondents appealed to the Federal Shariat Court. The learned Judge after examining all the facts of the antecedent litigation between the parties and evidence brought on the record felt that there was genuine doubt about the commission of the offence under section 10(2) of the Ordinance and giving them benefit of doubt he acquitted them. They were ordered to be released forthwith from the custody.

The learned counsel for the petitioner has taken us through the maize of litigation between the parties with a view to demonstrate that the child born to Nek Bakht in January 1980 and the subsequent enticement of Nek Bakht and their association together was indicative of their having indulged in adultry or Zina and both committed the offence for which they were rightly convicted by the trial Court.

On a perusal of the record and examination of the dates we find that it is not a fit case for leave to appeal. The marriage of the petitioner with respondent Nek Bakht stood dissolved when she obtained ex parte decree op 11-10-1980. The petitioner had got her back on 23-12-1979 on the assertion of subsisting marriage with her and a child was born soon after in January, 1980. The petitioner made no grievance of it as long as Nek Bakht had not obtained herself the decree-.for dissolution of marriage on 11-10-1980. It was thereafter that he filed a complaint against the two respondents. The oral evidence in the back ground of such litigation was rightly held by the Federal Shariat Court to be not of such quality or character as to justify the conviction of the appellant under section 10(2) of the Ordinance. Hence benefit of doubt was given to them and they were acquitted. This petition has no merit and the same is dismissed.

M . Z . M. Petition dismissed.

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