DR.AKHLAQUE AHMED vs THE STATE AND Othsrss
The petitioner sought leave to appeal against the acquittal of the respondents in a criminal case involving charges of bigamy and Zina. The petitioner, having obtained a decree of dissolution of marriage, challenged it in the High Court and secured an interim stay order. The respondent wife subsequently remarried. The petitioner alleged this constituted a criminal offence, despite the dissolution decree. The trial court acquitted the respondents under Section 265-K of the Code of Criminal Procedure 1898, a decision upheld by the Federal Shariat Court. The Supreme Court refused leave to appeal, holding that the marriage occurred after the statutory 90-day period following the original dissolution decree. The Court reasoned that the interim stay order merged into the final dismissal of the appeal, thereby restoring the original decree. Consequently, the marriage was legally valid, and no criminal offence was committed. The Court affirmed that where a challenge to a dissolution decree fails, the original decree retains its legal force and effect, precluding criminal liability for subsequent marriages contracted after the statutory period.
- Does a marriage contracted after the expiry of the statutory period following a decree of dissolution of marriage constitute an offence if the decree was temporarily suspended by an interim order that was later vacated?
- What is the effect of the merger of an interim stay order into a final judgment dismissing an appeal against a decree of dissolution of marriage?
- Can an acquittal under Section 265-K of the Code of Criminal Procedure 1898 be sustained when the underlying criminal charge relies on a marriage being void due to a pending legal challenge that was ultimately dismissed?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 494, Pakistan Penal Code 1860
- Section 265-K, Code of Criminal Procedure 1898
1. SHAFIUR RAHMAN, J.-The petitioner seeks leave to appeal against the dismissal is limine of his appeal by the Federal Shariat Court on 13th November,1982.
2. The petitioner was the husband of Mst. Kishwar Sultana, respon--dent No. 3, the marriage having taken place on 2-6-1975. The Family Court dissolved the marriage on 6th December, 1979. The petitioner invoked the constitutional jurisdiction of the High Court for challenging the decree of dissolution of marriage and obtained an order suspending the decree of the Family Court on 22- 12-1979. He got published the notices in the daily 'Pakistan Times' and the daily 'Mashriq' and also claims to have sent a telegram at the known address of the respondent No. 3 with a view to inform her of further proceedings that had. Taken place affecting the validity and effect of the decree of dissolution of marriage. Notwithstanding such notices and the effect of the order of the High Court the respondent No. 3 contracted a marriage on 11th April, 1980 with respondent No. 2. He thereupon submitted a complaint dated 29-7-1980 to the Superintendent of Police, Lahore on which a case was registered at the police station which was investigated and a challan was submitted under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 494, P. P. C. The respondents, accused in the case, submitted an application under section 265-K of the Criminal Procedure Code for .Their acquittal as according to them no case under the penal laws of the land was made out. The Additional Sessions Judge after examining the complaint and the record of the investigation accepted the application and held that "there is no probability of the accused being convicted in this case" and hence he acquitted them under section 265-K of the Cr.
3. P. C. Aggrieved by this order the petitioner preferred an appeal. The Federal Shariat Court did not agree with the Additional Sessions Judge in so far as hasty conclusions were drawn with certain persumptions with regard to the intimation to the Chairman Union Council by the Family Court within one week of its decision, and the want of service in appropriate time of the order of the High Court, but nevertheless it maintained the order of acquittal and declined to interfere with it on the ground that "from whatever angle the calculation is made to 'find out the date on which the decree can be said to be effective, it cannot go beyond the date on which the High Court had dismissed the petition." It was also held that "in strict Sharia the marriage was legal" and that "it will be a hyper-technicality to say that the marriage was premature".
4. The learned counsel for the petitioner contended that the two respondents contracted a marriage at a time when their marriage did not stand dissolved because the decree of dissolution of marriage stood. Suspended under the interim order passed by the High Court. As the earlier marriage between the petitioner and the respondent No. 3 was subsisting there could be no question of a second marriage and if another marriage was contracted the offence under section 10 of the Offence of Zina (Enforcement of Hadd) Ordinance, 1979 was committed. The petitioner has done all that could reasonably and possibly be done with regard to serving the notice on respondent No. 3 by publication in the newspapers, by sending a telegram and by informing the Chairman of the Union Council concerned. No greater responsibility could be laid on the petitioner in the matter. It was also contended that a full of the offence n petitioner had all the necessary evidence to prove offence because the prove the commission of the offence by them in violation of the Court's order and the law on the subject.
5. The trial Court has dealt with the matter at a stage when apart fro the complaint of the petitioner which was a fairly exhaustive document, the result and record of the investigation was also before it. The service of notice as a fact was not established either from the recitals of the complaint lodged or from the other material collected during the course of the investigation. Similarly there was nothing on the record to show that the Union Council had not been informed by the Family Court in accordance with the law requiring the communication to be sent within seven days of the decree by the Family Court to the Union Council. The marriage had admittedly taken place after the expiry of three months making allowance for a week after the passage of the decree. The interim order which temporarily interfered with the decree of dissolution of marriage merged finally with the order dismissing the appeal. After such dismissal the original order of dissolution of marriage passed on 6-12-1979 was restored and the marriage having taken place after 90 days thereof while such decree had the legal force and effect it cannot be said that there was commission of a criminal offence in entering into such a marriage. We do not consider that the view taken by the two Courts with regard to the result of the criminal prosecution is such as may require interference or further consideration by this Court. Hence leave to appeal is refused.