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Criminal Petition for Leave to Appeal No. 9‑R(S) of 1986, decided on 20th July, 1986.

(From the judgment/order of the Federal Shariat Court, Islamabad, dated 23‑1‑1986 passed in Criminal Revision No. 42/1 of 1985).

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 16‑‑Leave to appeal sought against acquittal‑‑Offences of abduction and Zina‑‑Appraisal of evidence‑‑Complainant being mother‑in‑law of accused‑abductee, making complaint several months after occurrence‑‑ Abductee claiming that she was divorced and had validly re‑married‑‑After recording of evidence, Trial Court acquitted accused and decision upheld in appeal‑‑Acquittal of accused challenged on grounds that material before Court was not properly appraised; material evidence was not recorded; and that divorce not having become effective under Family Laws Ordinance, accused was guilty of offence as charged‑‑Held: It could not be denied that findings of fact could be reached on strong probabilities also‑‑Even if supreme Court had formed a different opinion about appraisal of evidence, that by itself, was not good ground for setting aside acquittal.

‑‑‑Art. 203‑F‑‑Jurisdiction of Supreme Court highly discretionary‑‑It is not necessary in all cases where a point worth consideration is made out that leave to appeal be granted‑‑Prosecution of accused being extremely immoral in circumstances of case, Court refused to grant leave to appeal against acquittal, even on points.

M.Bilal, Advocate Supreme Court for Petitioner.

Rao Hamid Mukhtar Khan, Advocate Supreme Court for the State.

Nemo for the Remaining Respondents.

Date of hearing: 20th July, 1986.

Leave to appeal has been sought from judgment, dated 23rd January, 1986, of the Federal Shariat Court; whereby a criminal revision calling in question the acquittal of the respondents in a case under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). it was upheld.

The prosecution case as disclosed by Mst. Khurshid Begum the petitioner who is also a complainant P.W. is that Mst. Bakhat Bharri her daughter‑in‑law who is the wife of his son Aulia Khan P.W. was abducted by the respondents accused four or five months prior to her lodging of the complaint on 19‑10‑1983. Mst. Khurshid Begum's case was also that Mst. Bakhat Bharri who had taken child alongwith her was somehow or other a party to her having been taken away. The case as it developed before the trial Court took a different turn. Mst. Bakhat Bharri so‑called abductee raised a plea of divorce from Aulia Khan and valid marriage with one Ramzan. During the investigation of this case this plea was also put forward before the Police in presence of Aulia Khan and he had not protested in so far as the assertion of divorce by him is concerned. Not only this even during the investigation of the case Aulia Khan was prosecuted and convicted for having divorced Mst. Bakhat Bharri without informing the Chairman of the Local Council, but, it is stated that he was acquitted in appeal.

The learned trial Judge took note of these and other circumstances including the fact that Aulia Khan had also made an admission of having divorced Mst. Bakhat Bharri together with the fact that the complaint was made several months after the occurrence. After recording the evidence of few relevant witnesses on the question of the plea raised ' from the respondent‑side he acquitted them under section 265‑A, Criminal Procedure Code. Feeling aggrieved the petitioner filed a revision petition in the Federal Shariat Court which having been dismissed she has now sought leave to appeal against acquittal.

Learned counsel for the petitioner has raised three main contentions: that the material before the Court has not been properly appraised in connection with the findings of fact which according to him have not been correctly reached; that important and material evidence had not been recorded by the trial Court when the accused were acquitted; and lastly, that even if it be assumed that Aulia Khan had pronounced divorce the same not 'having been processed in accordance with the Family Laws Ordinance had not become effective, therefore, on Mst. Bakhat Bharri's own conduct she at least was guilty of the offence as charged when she herself admitted that she had married another person, namely, Ramzan.

Learned trial Judge and the learned Judges in the Federal Shariat Court took note of material circumstantial evidence as also the conduct of Aulia Khan in reaching the conclusion that the latter had divorced Mst. Bakhat Bharri without however going through the procedure prescribed under the Family Laws Ordinance so as to make it effective. He was afflicted with a serious illness which fact the Courts took into consideration he divorced his wife and did neither protest against her going away nor did he prosecute her and her co‑accused. Mst. Khurshid Begum who is his mother instead launched the prosecution that too after a long time during or about the time when Aulia Khan was prosecuted for not having himself observed the provisions of the Family Laws Ordinance. This throws light on the nature of the prosecution case and the intention underlying the same. Be that as it may, it cannot be denied the findings of fact can be reached on the strong probabilities also. In this case there is no reason to differ with the learned two Courts below in so far as their having reached certain, conclusions regarding the divorce by Aulia Khan is concerned. Even if this Court would have formed a different opinion about appraisal of the evidence that by itself, as repeatedly held by this Court, is not a good ground for setting aside acquittal. We, therefore, find no force in the first argument advanced by the learned counsel.

The second argument of the learned counsel in the circumstances of this case is also without any force. The material evidence including the deposition of Aulia Khan had been recorded. The marriage of Mst. Bakhat Bharri with Aulia Khan was not denied from the accused side who are closely related to the complainant side. The accused side had itself admitted the second marriage of Mst. Bakhat Bharri with Ramzan. There was no need for recording any evidence on the question of marriages. And regarding divorce by Aulia Khan there was nothing more to be recorded in so far as the prosecution witnesses are concerned. Therefore, it cannot be said that any material evidence regarding the decision of the case on material issues, was left out.

The last argument of the learned counsel has force in so far as the legal position is concerned. He has cited case‑law to support him, in that, unless a pronounced divorce is processed as provided in the Family Laws Ordinance it would not be effective. That might make the marriage of Mst. Bakhat Bharri with Ramzan legally invalid.

But the matter would not end here. The jurisdiction of this Court to grant leave to appeal is highly discretionary. It is not necessary in all cases where a point worth consideration is made out that leave to appeal is granted. In this case the prosecution of Mst. Bakhat Bharri and her co‑accused by the complainant side to say the least is extremely immoral. This is so because it has been established that she had been divorced by Aulia Khan although he himself avoided taking some legal steps. He and his mother cannot be allowed by this Court in its discretionary jurisdiction to reap the benefits of their own misdeed and immoral act by resiling from the factum of divorce. We, therefore, in our discretionary jurisdiction do not consider it a fit case even on the point the learned counsel has been able to make out, to grant leave to appeal.

It may be clarified that this petition has arisen out of an acquittal of the accused persons. If, however, the petition for leave to appeal would have been against conviction the principles applicable and the result might have been different.

With the foregoing discussion this petition is dismissed.

M.I. Petition dismissed.

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