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Criminal Appeal No. 200/I of 1986, decided on 5th November, 1986.

‑‑‑S. 265‑K‑‑Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S. 7‑‑Qazf proceedings‑‑Application for maintenance of child before Family Court‑‑ Accused making allegation of illegitimacy in written statement‑‑During pendency of complaint, accused filing another written statement before Family Court admitting child to be legitimately born out of his wedlock with appellant‑‑Accused also admitting first written statement‑‑Trial Court holding preliminary inquiry, took cognizance and issued warrants against accused‑‑Trial Court without referring to earlier written statement acquitted accused under S. 265‑K, Cr.P.C. on basis of last written statement filed by accused before Family Court Trial Court having taken cognizance of case after preliminary inquiry, acquittal of accused, held, was not based on correct appreciation of material evidence‑‑Court should have recorded some evidence before coming to conclusion that charge was groundless and case was not likely to end in conviction‑‑Case remanded for trial in accordance with law.

Malik Rab Nawaz Noon for Appellant.

Muhammad Aslam bns for Respondents.

Date of hearing: 5th November, 1986.

.‑‑ This is an 'appeal from the order of the Additional Sessions Judge dated 6‑5‑1986 whereby the application of the respondent under section 265‑K , Cr . P. C . was allowed and he was acquitted of the charge of section 7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 which was brought against him by appellant Mst. Parveen Jan vide her complaint dated 20‑3‑1985. The background of the complaint may be stated as under:

The appellant was married with the respondent in the year 1981. Out of this wedlock, a daughter was born named Sana Arooj. It appears that in 1989 the parties separated. The circumstances of separation have not been clearly brought on the record by the appellant. However, on 1‑12‑1984 the appellant filed an application for maintenance in respect of her minor daughter in the Court of Family Judge Rawalpindi. The para. 4 of this plaint is relevant which is reproduced hereunder: ‑

In reply to this plaint the respondent filed his written statement on 5‑2‑1985 in which he stated that the minor was not born out of his loins and, therefore, she has no cause of action for maintenance. It may be stated that the above objection was taken by the respondent on the ground that neither the daughter born to parties of the wedlock was named Atia Bibi nor the date of birth i.e. 20th of March, 1984 given in plaint, was correct.

2. Realizing this mistake the appellant amended her plaint in which she stated that the correct name of the daughter was Sana Arooj and not Atia Bibi. She further stated in para. 5 of the amended plaint that the child was born on 5‑8‑1984. The reply to this amended plaint was filed on 9‑10‑1985 by the counsel of the respondent which is the basis of the plaint for Qazf reply to para‑5 is reproduced hereunder:‑-

According to the appellant the above written statement was reiteration of the allegation of illegitimacy which was attributed to the minor child in his first written statement by the respondent on 5‑2‑1985. Aggrieved by this allegation in the amended written statement of the respondent, the appellant filed complaint under section 7 of the said Ordinance against the appellant on 23‑10‑1985 before the learned Additional Sessions Judge, Rawalpindi. The learned trial Judge after holding preliminary inquiry, took cognizance to the case and issued warrant against the respondent which was duly served upon him. He appeared before the Court on 10‑12‑1985 and was released on bail. But on this date the relevant documents were also supplied to him. It is presumed that he was also supplied the copy of the amended written statement dated 9‑10‑1985 which was filed on his behalf by his counsel and in which the allegation of illegitimacy of the child concerned was the reiterated. The respondent did not disown the written statement filed on his behalf by his counsel.

3. It appears that during pendency of this complaint and even before the trial could commence, the respondent filed another amended written statement on 4‑2‑1986 before the Family Court Judge. It is not known how this document came on the record of the Family Court Judge who was seized of the maintenance proceedings. In this written statement he said that the child was legitimate and was born out of his wedlock with the appellant. There is no reference in this written statement to the earlier written statement dated 9‑10‑1985 which was filed by his counsel on his behalf and copy of which was supplied .to him when he appeared before the trial Court in pursuance of warrant in the case under section 7 of the said Ordinance.

4. The respondent obtained certified copy of his 2nd amended written statement dated 4‑2‑1986 and made an application to the trial Court under section 265‑K, Cr.P.C. praying that he should be acquitted of the charge.

5. The learned trial Judge after hearing the parties acquitted the respondent merely on the basis of the 2nd written statement which was made on 4‑2‑1986.

6. We have gone through the judgment of the trial Court and find that the main cause of action of the appellant for initiating Qazf proceeding, was the written statement filed by the respondent on 9‑10‑1985 in which the allegation of illegitimacy, made in the earlier written statement dated 5‑2‑1985 was, reiterated in spite of the fact that the correct name and date of birth of the child concerned, was specified in the amended plaint dated 4‑9‑1985. The learned trial Judge has not referred to this important piece of document i.e. amended written statement of the respondent dated 9‑10‑1985 which has been made basis of Qazf proceeding.

7. We, therefore, feel that once the learned trial Judge had taken cognizance of the case after holding preliminary inquiry, then he should have recorded some evidence, before coming to the conclusion that the charge was groundless and the case was not likely to end in conviction as provided by section 265‑K , Cr. P . C . We are, therefore, inclined to hold that the acquittal is not based on correct appreciation of the material evidence on the record.

8. Consequently we allow this appeal, set aside the order of acquittal and remand the case to the Sessions Judge, Rawalpindi, to hold the trial and dispose of the case according to Law. We may, however, observe that after recording evidence, if the respondent so desired, he may submit fresh application under section 265‑K, Cr.P.C. The respondent is present in Court, as well as appellant. They have been directed to appear before the Sessions Judge, Rawalpindi, on 19‑11‑1986. The trial Court may call upon the respondent to furnish surety as deemed necessary by him. We further direct that the learned trial Judge shall dispose of the case within three months.

S.A. Case remanded.

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