MUHAMMAD ISMAIL Versus AMANULLAH

1. The applicant through this application under section 561‑A, Cr.P.C. seeks quashment of the criminal case pending against him under section 10(2) and section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 14 of the Offences Against the Property (Enforcement of Hudood) Ordinance, 1979 read with section 406/420, P.P.C. pending in the Court of II1rd Additional Sessions Judge, Karachi (South) in the circumstances stated herein below.

2. Amanullah, the respondent No.1, is the husband of, the second respondent, Mst. Rukhsana. Amanullah was married to Mst. Rukhsana in 1975 and three children were,' born out of the wedlock. Amanullah in, 41983, left .for Hong Kong as he was posted there while serving in a bank and left his children at their normal place of residence at Karachi. In the year 1986 while Amanullah was in Hong Kong his wife Mst. Rukhsana informed him on telephone that she will be going for a few days to Hyderabad to visit her ailing sister there. On enquiries Amanullah was informed that his wife Mst. Rukhsana never went to Hyderabad, instead had gone out of Pakistan alongwith Muhammad Ismail, the applicant herein. Muhammad Ismail is said to be a neighbour and known to the family. Amanullah on return to Karachi on 30th January, 1986 made enquiries from various sources about his wife. He learnt that his wife had actually gone out of Pakistan alongwith applicant and had also taken away valuable jewellery from his house and had withdrawn a substantial amount from his account with a bank. The details of enquiry conducted by Amanullah are given in the complaint itself.

3. The IIIrd Additional Sessions Judge, Karachi (South) examined the complainant under section 200, Cr.P.C. and forwarded the same to the Magistrate having jurisdiction for holding preliminary enquiry under section 202, Cr.P.C. and forwarding his report within one month. The Magistrate after examining certain witnesses named in the complaint submitted his report in compliance with aforesaid order and reported that no evidence was adduced by the complainant to prove that actually illicit intercourse had taken place between the accused persons, and evidence regarding the alleged travel of the accused outside Pakistan and their residing together in a house in C.P. Berar Housing Society, Karachi was not of a conclusive nature. This report was then contested by the complainant on the ground that the Magistrate had not examined all the witnesses named in the complaint. The Additional Sessions Judge directed that a further enquiry be made by the S.D.M. Civil Lines with a direction to examine the remaining witnesses under section 202, Cr.P.C. The S.D.M. Civil Lines conducted further enquiry as directed and he too was of the view that the evidence produced by the complainant was of doubtful nature regarding Zina, theft from the house and withdrawal of money. He, therefore, reported that prima facie case was not made out against the accused. The Additional Sessions Judge, Karachi (South) did not agree with the second report as well and he through his detailed order dated 21‑2‑1988 took cognizance of the case and issued process under sections 10(2) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance and under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 406/420, P.P.C. The case has not yet proceeded in the trial Court and the present application was filed on 19‑3‑1988.

4. At the very outset Mr. Azizullah K. Shaikh, learned counsel for the applicant sought permission to place on record a certified copy of the judgment and decree dated 31‑5‑1988 passed by the XI1th Civil and Family Judge, Karachi (South) in First Class Suit No. 251 of. 1986 filed by Mst. Rukhsana against her husband Amanullah seeking divorce.

5. Mr. Azizullah K. Shaikh learned counsel for the applicant has urged the following grounds in support of his case:‑

(i) That there is no evidence brought on record through both the enquiries mentioned herein above to prove Zina as is defined in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the whole exercise which is to be conducted pursuant to the process issued by the Court will be merely an exercise in futility.

(ii) That in the circumstances of the case the continuation of the proceedings in the criminal Court will amount to abuse of process of law.

(iii) That judgment and decree passed by the Civil Court is based on the evidence led by the complainant which he proposes to lead in the complaint. The judgment passed in that Suit is against the complainant. In case any judgment is passed to the contrary by the Criminal Court it will merely create conflict in the judgments.

6. In support of his above contentions he has relied on the cases reported in P L D 1981 FSC 323, P L D 1981 FSC 293, P L D 1980 Lah. 386, P L D 1982 FSC 52, 1986 P Cr. L J 1511.

7. Mr. Muhammad Akhtar Khan, Advocate for Mst. Rukhsana the respondent No.2 has adopted the arguments advanced by Mr. Azizullah K. Shaikh and contends that this is a fit case which should be quashed. Additionally he has stated that the complainant failed to examine the two important witnesses, viz. Hidayatullah and Mst. Farida who in fact according to his own version in the complaint are the first witnesses to have informed him about the conduct of his wife. It will, therefore, be inferred that if examined they would not support him. According to his version in the complaint he returned from Hong Kong on 30‑6‑1986 when he was told about the alleged affair of Rukhsana while he filed his complaint on 8‑4‑1987 without explaining the delay for such a long period. According to him these additional grounds raised by him are fatal to the case of prosecution.

8. Mr. M.I. Memon, Advocate for respondent Amanullah (complainant) has mainly stressed that according to the trial Court prima facie case against the accused has been made out as the Additional Sessions Judge has been pleased to take cognizance of the offences and it will be premature at this stage to quash the proceedings and thereby stifle the prosecution. He has relied on the cases reported in 1988 S C M R 265, 1972 S C M R 229, 1986 P Cr. L J 830, P L D 1981 SC 607,PLD1967SC317.

9. Mr. Zahir Qureshi, Advocate for the State has adopted the arguments advanced by Mr. M.I. Memon, and according to him it is not a fit case which is to be quashed by this Court at this stage.

10. The first point urged on behalf of the applicant is absolute lack of evidence to prove Zina in the case. `Zina' has been defined in section 4 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as under:‑‑-

11. "A man and a woman are said to commit Zina if they wilfully have sexual intercourse without being validly married to each other."

12. In any case it is essential to actually prove by evidence that sexual intercourse was committed by a man and a woman in order to prove any offence of Zina as defined and made punishable under the said Ordinance. No such evidence has either been recorded in the case or indicated to be available through the complaint itself. Evidence of conduct of Mst. Rukhsana during the absence of her husband at best is available which may at the most lead to the inference of commission of Zina. In order to prove the charge of Zina, direct evidence of commission of sexual intercourse is needed which is patently missing. The Additional Sessions Judge who took the cognizance of the offences has passed a very elaborate and detailed order referring to the entire evidence brought on record through both the enquiries. The order itself does not speak of any direct evidence on the fact of commission of sexual intercourse.

13. Mr. Azizullah K. Shaikh when confronted with the proposition that he should have moved the trial Court under section 265‑K, Cr.P.C. seeking acquittal of the applicant in the case before approaching this Court under section 561‑A, Cr.P.C. stated that he had filed this application after the process was issued by the Sessions Judge and it would have been meaningless to approach him without further steps having been taken in the case. He further clarified that he did not approach the trial Court after decree was granted to Mst. Rukhsana by the Civil Court as he had good case on the facts as well.

14. From the case‑law cited by the learned Advocates for the parties on this aspect of the case it is clear that the powers of the trial Court under section 249‑A or 265‑K, Cr.P.C. are co‑extensive and concurrent with the powers of the High Court for the purpose of seeking such relief. It is a well‑established principle of I law that in such type of cases the trial Court being a subordinate Court of inferior jurisdiction should be approached first, This principle can be deviated from in certain cases depending on the facts of each case (sic) of his rules, therefore, is not a hard and fast rule to be strictly adhered to.

15. On examination of the evidence recorded in the case, I find that no evidence to prove Zina as defined in section 4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has been recorded nor there is any such indication in the complaint itself that evidence can possibly be brought on record. Similarly no evidence has been produced by the complainant to substantiate the charge under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as well as under section 406/420, P.P.C. There is a delay of over a year in lodging the complainant which by itself renders bona fides of the complainant doubtful, particularly in view of pending suit between him and his wife.

16. In the circumstances of this case I consider the continuation of proceeding of the case as the abuse of the process of Court and quash the same.

17. S.A./M‑671/K Proceedings quashed.