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Criminal Petition No. 34‑R(S) of 1986, decided on 29th July, 1986.
(Against the Judgment and order of the Federal Shariat Court, dated 13‑4‑1986 in Criminal No. 1‑L of 1986).
‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VI of 1979), S.10‑‑Criminal Procedure Cope (V of 1898), S.109/201‑ Complaint about offence of Zina‑‑Dismissal of‑‑Commission of offence established by two complaints filed by petitioner and respondent as well as fact of‑pregnancy‑‑In view of factual background brought out, held, it was a fit case where leave to appeal should be granted in order to determine legal impact of various proceedings pending and taken by parties and police.
Tanvir Ahmed, Advocate‑on‑Record for Petitioner.
M. Rashid Chughtai, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents.
Date of hearing: 29th July, 1986.
The petitioner who claims to be the husband of respondent No. 1 seeks leave to appeal against the judgment of the Federal Shariat Court, dated 13‑4‑1986 whereby his petition for leave to appeal against the dismissal of a complaint filed by him under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, was dismissed.
On the 1st of July, 1985 the petitioner filed a complaint against Mst. Allah Jawai and seven others accusing them of the offence under section 10 of the Ordinance and under section 201/109, P.P.C. He claimed that he was married to respondent No. 1 who was his cousin and Rukhsati had not taken place. He claimed further that on coming to know that she was pregnant, he made a complaint to the police and the police gave him the 'impression that they were investigating the case but did nothing. According to him, she had committed the offence of Zina with one Naseer respondent No. 2 and in order to cover this misdeed, she had filed a complaint on 25‑6‑1985 accusing Rehma of having committed Zina‑bil‑Jabar with her.
The Additional Sessions Judge on 18‑12‑1985 after examining the complainant and one of the so‑called eye‑witness, namely, Muhammad Zaman dismissed the complaint.
The Federal Shariat Court by the impugned order refused him leave to challenge it.
It is contended by the learned counsel for the petitioner that the complaint filed by Mst. Allah Jawai and the one filed by the petitioner both established that she was the wedded wife of the petitioner; that Rukhsati had not taken place and the marriage had not been consumated that she had been subjected to sexual intercourse and was pregnant. The only difference in the version of the two was that according to the petitioner it was one Naseer who had committed the offence while according to respondent No. 1 it was Rehma who had done so. The pregnancy itself on these facts was an indication that Zina was committed. Besides, the F. I. R. lodged by the petitioner on 23‑12‑1985 in respect of this very occurrence was investigated and the challan has been submitted in Court. In view of these facts it was eminently a fit case where leave to appeal should have been granted and the complaint kept alive for trial.
The allegation of pregnancy of respondent No. 1 from a person other than her husband was specifically mentioned in the complaint. Not only the ocular evidence but this fact was also material which had to be kept in view.
We consider that in view of the factual background brought out it is a fit case where Leave to Appeal should be granted in order to determine the legal impact of various proceedings pending and taken by the parties and the police. Leave to appeal is, therefore, granted.
M.I. Leave granted.
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