FAZAL-I-MAHMOOD, J.-This Intra-Court Appeal is directed against the order of a learned Single Judge whereby on a Constitutional petition filed by Ahmad Yar respondent No. 1, the concerned S. H. O. Was directed to register a case and proceed in accordance with law.
2. The brief facts giving rise to this Intra-Court Appeal are that Ahmad Yar respondent No. 1, filed Constitutional Petition No. 1469 of 1982 against Station House Officer, Police Station Gojra on his alleged refusal to register a case when furnished with information regarding the commission of a cogni--zable offence. The case set up by Ahmad Yar respondent No. 1, before the learned single Judge was that he, according to Muslim law, married 7lst. Taj Bibi on 12-8-1977. After living harmoniously for 10/I1 months Mst. Taj Bibi went to visit her relatives but she did not return for a long time. The petitioner then made enquiries and learnt that she bad gone away with Muhammad Rafiq, appellant and these two were leading a life of sin. On further enquiry, he claimed to have learnt that on his behalf a notice of Talaq to Mst. Taj Bibi had been received by the Union Council concerned. The respondent further claimed that the so-called notice was fake and forged.
Respondent No. 1 thereafter claimed to have informed the Chairman of the concerned Union Council within 30 days of the discovery of alleged forgery and asserted that he had not divorced his wife nor intended to do so. A copy of the disputed notice of Talaq is' Annexure `B' to the writ petition which though dated 6-8-1980 appears to have been received and registered by the Chairman. On 8-7-1981. He accordingly gave an application to S. P. Faisalabad for the registration of the case. This application was marked by the S. P. To the S. H. O. Police Station Gojra, for necessary legal action on 15-8-1981 vide Annexure `D' to the writ petition but no case was registered. He thereupon filed the writ petition.
3. When this writ petition came up for hearing before a learned Single Judge, he issued a notice to the S. H. O. During the pendency of the writ petition, appellant Muhammad Rafiq filed an application- under Order I, rule 10, C. P. C. For being impleaded as a respondent to the proceedings which prayer was allowed and thereafter both sides heard. The learned single Judge on 5-5-1982, accepted the writ petition and ordered registration of the case on the statement of Ahmad Yar, respondent No. 1 and to proceed in accordance with law. This order has been assailed through Intra-Court Appeal.
4. In his application for being impleaded as a party, Muhammad Rafiq appellant had admitted the basic position that Mst. Taj Bibi was married to Ahmad Yar but asserted tilt she had been divorced on 6-8-1980 and there--after on expiry of 90 days Iddat Period, she did not remain the wife of Ahmed Yar. Accordingly, appellant Muhammad Rafiq contracted marriage with Mst. Taj Bibi on 27- 11-1980. It was further alleged that after the expiry of the Iddat period, father and brother. Of Mst. Taj Bibi tried to marry her to another person whereupon she filed a private complaint in the Court of A.
D. C. (G) on 12-10-1980 which came to an end as a result of compromise through Panchayat. Mst.
Taj Bibi again filed a private complaint against her father Muhammad Ramzan and brother Allah Ditta in the Court of Magis--trate, Gojra.
5. On 12-6-1981, Muhammad Rafiq appellant got a case registered under sections 11 and 16 of the Enforcement of Zina Hudood Ordinance vide F. I. R. No. 208 with P. S. Gojra, as regards an alleged occurrence on the night between 6th and 7th of June, 19$1. It was reported that on the said night, Muhammad Rafiq was sleeping in his house while Mst. Taj Bibi was in the house of her parents. He was informed that one Salahat with the help of Inayat, Farid and Yusaf had abducted Mst. Taj Bibi.
A chase was made but without success. Muhammad Rafiq then learnt that his mother-in-law Mst.
Jindan and his father-in-law and his brother Pehalwan had conspired with, Salabat etc. And got Mst. Taj Bibi abducted. It was further alleged that before Muhammad Rafiq married Mst. Taj Bibi, said Salabat was also desirous of marrying her but Mst. Taj Bibi did not agree. The accused in the case thus had a grudge on that account. Copy of the F. I. R. Is Annexure `V' to the application under Order I, rule, 10 which has been perused.
6. On 22-9-1981, Mst. Taj Bibi filed a suit for jactitation of marriage before the Judge Family Court, Sargodha. During the pendency of the writ petition of respondent No. 1, Mst. Taj Bibi on or about 3rd May, 1982 allegedly filed another suit for perpetual injunction against her father Muhammad Ramzan, mother Mst. Jindan Bibi and Ahmed Yar respondent No. 1. She also impleaded Muhammad Rafiq as respondent No. 4. She sought the relief that respondents Nos. 1 to 3 should be restrained through the perpetual injunction not to give out Mst. Taj Bibi as wife of Ahmad Yar and not to deny the notice of divorce dated 6-8-1980 and further not to refute her remarriage with Muhammad Rafiq or interfere with her matrimonial life, etc. In the jactitation suit,. Ahmad Yar filed a written statement on 4-11-1981 and it was pleaded that he had not divorced Mst. Taj Bibi and that the notice of Talaq purporting to 'be under section 7(1) of the Muslim Family Laws Ordinance, in order to make the divorce effective was fabricated and forged and be had never given any such notice nor any alleged notice contained his thumb-marks and the whole matter was concocted by Muhammad Rafiq, appellant. She had eloped with Muhammad Rafiq and was living a life of sin with him. The two suits are still pending adjudication, it is stated at the Bar.
7. The learned counsel appearing in support of the Intra-Court Appeal urged that a criminal case already having been registered vide F. I. R. No. 208 of 12-6-1981, respondent No. 1 could have joined the same case for investiga--tion but a second F.
1. R. With respect to the same incident ought not to have been ordered to be registered by the learned single Judge vide his impugned order. The learned counsel placed strong reliance on the judgment of the Supreme Court In re: Jamshaid v.
Muhammad Akram and others (1). After examining the contention and respectfully going through the precedent cited, I have come to the conclusion that the contention is devoid of merit and the precedent cited has no manner of application to the present case. In the cited case, the constitutional petition had beet) dismissed by the High Court in limine, inter alia on the ground that in respect of the same transaction a case bad already been registered with the petitioner as one of the accused therein. The matter was then taken up before the Supreme Court and it was contended that the police was under an obligation to register the case at the instance of the petitioner reflecting his own version of the incident notwithstanding the fact that in respect of the same transaction a case had already been registered. The Supreme Court did not feel impressed by the argument. It was further held;-- "The petition could be thrown out on the short ground that the High Court was under no obligation to grant the relief prayed for by thepetitioner. It was a matter resting entirely in its discretion and there is nothing to indicate that it was improperly exercised."
In the present case, however, the earlier F. I. R. No. 208 relates altogether to a different incident and transaction inasmuch as it was lodged by the appellant against abduction of Mst. Taj Bibi by Salabat and his named com--panions in respect of the occurrence on the night between 6th and 7th June, 1981. The F.
1. R. Sought to be lodged by Ahmad Yar, however, was not a counterversion by an accused of the incident of 6th 7th June, 1981 and it therefore, cannot be said that Ahmad Yar as an accused in the earlier case was trying to give his own version in respect of the same incident or transac--tion . The plea of Ahmad Yar in the present case was that he. Had factually not divorcedhis wife . That at any rate ,the alleged divorced could not become effective unless the prescribed notice under section 7 (1) of the Muslim Family Laws Ordinance- had been given by him to the Chairman. This plea appears to be based on the strength of the enunciation of law by .The Supreme Court of Pakistan In re : Mst. Ghulam Fatima v. A6du1 Qayyum (2). According to him, therefore, during the subsistence of his marriage, the appellant and Mst. Taj Bibi under the false cover and pretence of marriage were committing zinc. The chief contention raised by the appellant has no force and fails.
8. In the present case, the learned single Judge has exercised his dis--cretion which he undoubtedly possessed and nothing has been shown to indicate that it has been exercised improperly, arbitrarily or fancifully so as to warrant interference in the Intra-Court Appeal.
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9. The learned counsel next submitted that the learned single Judge ought not to have ordered registration of the case in view of the fact that civil litigation in the form of suits for jactitation and perpetual injunction were already pending before the civil Courts. The plea is devoid of merit and is misplaced as would presently be seen. Ice however than the true position is contrary to the one being canvassed. Ahmad respondent through a written application had on 15-8-1981 laid information with S. P. Faisalabad regarding commission of a cognizable offence. The application was entertain--ed and marked to S. H. O. P. S. Gojra but no case was registered which ultimately compelled Ahmad Yar to approach the High Court for the desired relief. The suit for jactitation was filed on 22-9-1981 whereas suit for perpetual injunction was filed when Ahmad Yar's writ petition had already been admitted to a regular hearing. Copy of the plaint bears the date 3-5-1982. It was thus filed subsequent to the filing of Writ Petition No. 1469 of 1982 which was instituted on 22-4- 198.2. Both the suits were instituted subsequent in point of time to Ahmad Yar's application to S. P.
Faisalabad for registration of a case. As far back as 15-8-1981. Superintendent of Police marked it to Police Station Gojra for necessary legal action and report. It was on the refusal of the police to register the case that ultimately the writ petitioner felt obliged to knock at the door of this Court for a direction to the S. H. O. To register the case. Therefore, on careful analysis of the chain of events in this case, the conclusion is irresistible that ,that the suits in question did not precede Ahmad Yar's approach to the police agency for registration of the case but resort was had to the suits after he had through his application dated 15-8-1981 moved the machinery of criminal law.
10. There is another material aspect of the case which cannot be lost sight of inasmuch as it is admitted that on the statement of Ahmad Yar in pursuance to the direction issued by the learned single Judge an F. I. R. Was registered at P. S. Gojra being F. I. R. No. 125 on 7-5-1982 under section 10 of Enforcement of Zina Hudood Ordinance read with section 109, P. P. C. (not so far under section 468/471, P. P. C.) against Muhammad Rafiq appel--lant's Ust. Taj Bibi, and Maulvi Muhammad Ramzan. An F.
1. R. Having been registered and investigation being afoot, I am not inclined to interfere with the investigation of the case. The appellant's Intra-Court Appeal came up for hearing in limine on 8-5-1982 when the F. I: R. Bad already been registered.
11. 1 have not gone into the merits of the case lest it may prejudice either party in its defence during the trial if at all, the accused in the case are challaned. As to the effect of the pendency of the civil proceedings, it is a plea which may be available to the concerned party at the trial, should the occasion for it arise.
12. .I, therefore, see no justification to set aside the order of the learned single Judge and would dismiss this lntra-Court Appeal. There will be no order as to costs in the circumstances of the case.
SHAMEEM HUSSAIN KADRI, Acres. C. r.-Mst. Taj Bibi an unfortunate woman, was married to Ahmad Yar on 12-8-1977 as revealed by Nikah Nama Annexure `A' to the writ petition. There was no issue out of this wedlock. According to her statement before a Magistrate in a complaint under sec--tion 452/506, Criminal Procedure Code she was divorced on 6-8-1980 as she was maltreated and accused of bad character by her husband. Thereafter she went to the house of her parents.
According to her, they wanted to give her hand to a person whom she did not like. She left the house of her parents and wanted to marry a person of her own choice. This statement was recorded on 8-10-1980. On 27-11-1980 she is alleged to have married Muhammad Rafique. The Nikahnama is Annexure `R' to the writ petition. The Nikah was performed by Maulvi Muhammad Zaman. She is alleged to have been abducted from the house of Muhammad Rafique who lodged F. I. R. At Police Station Gojra on 12-6-1981. NThe case was registered under the Hudood Ordinance No. VII of 1979.
2. For the first time Ahmad Yar made an application to the S. S. P. Faisalabad on 15-8-1981 who marked it to the S. H. O. Police Station Gojra for "action legal and report". In this application Ahmad Yar mentioned in paragraph No. 5 that neither he had divorced Mst. Taj Bibi orally nor in writing and if there was any divorce deed with her that was fabricated. Almost eight months thereafter Ahmad Yar moved this Court on 22-4-1982 by filing Writ Petition No. 1469 of 1982. Muhammad Rafique filed an application under Order 1, rule 10, C. P. C. With the prayer that he may be impleaded as a party.
The learned Judge in Chamber passed the following order on 5-5-1982 :- "After hearing the parties, I direct the S. H. O. To register the case on the statement of Ahmad Yar and proceed in accordance with law."
This order was assailed in Intra-Court Appeal before me and learned brother Fazl-i-Mahmood, J.
We sent for the S. H. O. Who appeared in Court on 1-6-1982 and his statement was recorded.
According to him, he was posted in Police Station Gojra since June 1981. Report No. 208 lodged by Muhammad Rafiq was recorded under sections 1, 11/16 of Zina (Enforcement of Hudood) Ordinance No. VII of 1979. The case was investigated and the challan is lying with the P. D. S. P. He stated, under the direction of this Court, on the statement of Ahmad Yar a case has been registered under section 10 of Ordinance Ahmad Yar has not mentioned about the forgery of notice having been sent to the Chairman of Union Council for the divorce of Mst. Taj Bibi and no separate case regarding forgery of the notice has been registered so far at the Police Station.
3. It was argued before us that the notice to the Chairman by Ahmad Yar is forged and the divorce has not become effective on account of the absence of such a notice by Ahmad Yar. In this situation when a suit for jactitation is pending before the Judge Family Court and the investigation in the case under the Hudood Ordinance registered at the instance of Muhammad Rafique having been completed lying with the P. .D. S. P. For submission to the Court, registration of another case at the instance of Ahmad Yar after such a long period is certainly undesirable. In any case, since the investigation has been initiated this Court would not like to interfere in the investigation. It should be kept in mind that under the Muslim Law there are two kinds of the talak-talak-i-ahsan and talak-i-biddat. The former is pronounced once during a tuhr followed by abstinence from sexual intercourse for the period of iddat. The latter is three pronouncements simultaneously Talak becomes irrevocable according to paragraph 312 of Muhammadan Law by Mulla after the period of iddat in the case of talak-i-ahsan and on the completion of third pronouncement irrespective of the period of iddat. Since the talak in the latter case becomes irrevocable at once, it is known asl talak-i-bain.
4. Section 7 of the Muslim Family Laws Ordinance, 1961, provides al notice in writing by the husband who has divorced his wife, to the Chairmanand its copy to the wife. The violation of this provision is punishable with simple imprisonment for a term of one year and a fine which may extend to five thousand rupees or with both. Subsection (3) of this section speaks of talak being effective until the period of ninety days expires from the day on which notice was delivered to the Chairman.
5. The question whether section 7 of the Muslim Family Laws Ordinance is repugnant to Qur'an and Sunnah it is for the Federal Shadat Court to look into this aspect of the case as it is the domain of that Court. Suffice it to say that the objective of this Ordinance was to provide protection to the weaker sex from the tyranny, pigheadedness and upperhand of the man, surely it did not extend to keepa women hanging in matrimony. This is not the only case. I have come across several cases of great hardship where the life of a woman is made miserable by the husband and she seeks even khula, yet a District Judge despite the statement of the girl that she will prefer to jump into the well than to go with the callous husband, did not allow the dissolution of marriage and a direction was issued that she be beaten and confined in the house by the husband. Obviously this is nothing.
But height of ignorance and the Injunctions of the Holy Qur'an and the Sunnah of the Prophet of God (peace be upon him). The most simple and practicable religion is being exploited by the `heroin' man by misinterpretation of the commands of God. The weaker sex is not treated according to the status which was conferred upon her by the Prophet of God (peace be upon him).
Since the learned Judge in Chamber has not given a, direction for the registra--tion of a case under a particular law, I would abstain from making any observation. It is for the Investigating Officer and ultimately for the Court to see as to which offence, if any, is made out. The matter has to be looked in juxtaposition of the other criminal case as well as the suit for jactitation. Since the Investigating Officer has been directed to act in accordance with the law, the impugned order is not to be interfered with in appeal. However, I have given my own reasons on account of the legal intricacies involved in the case and the dictum of the Supreme Court in Mst. Ghulam Fatima's case PLD 1981 SC 460This was a case where the wife, was stated to haute been released from the wedlock by her husband by - pronouncing Talak and executing Talak--nama. There was no mention made for the waiver of dourer in the wife's application nor any evidence led to that effect by the husband Talak in such a situation was held not a voluntary act much less by mutual consent. ' The wife had not filed suit to obtain separation by khula` and the husband having died, question of exercising such right to obtain separation by khula` did not arise. It was held that the Talak did not become effective but stood revoked for reason of no notice having been given by the husband under section 7 (1) of the Ordinance. The learned Judge clearly created a distinction between revocation and the taking effect of the Talak. It is thus clear that the absence of notice would obviously be a violation of section 7 of g the Ordinance only, the crime punishable .Under the Ordinance. By no stretchof imagination Talak, if pronounced, can be claimed to be ineffective.
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