' ABDUR REHMAN KHAN KAIF, J.--This revision petition by Amanullah Khan son of Habibullah Khan, r/o House No'.2062/B, Main Bazar, Mori Gate, Lahore, is directed against the order of the learned Additional Sessions Judge, Lahore, dated 29-9-1988 whereby his complaint against respondents, Mazhar Ali son of Haider Ali and Mst. Rashida Begum, daughter of Abdul Ghani, was dismissed.
2. According to the allegations, Mst. Rashida Begum, respondent, was the wife of the petitioner. That on 26-10-1987 at noon time when the petitioner returned home for his meals, he found both the respondents, Mazhar Ali and Mst. Rashida Begum, in a compromising position, committing zina with each other. Under sudden provocation, the petitioner caught hold of his wife from her hair and threw her away on the floor, but both the respondents started beating him. He called his brother, Muhammad Saleem alias Samiullah Khan, for help and when he entered the room, the respondent No,2 threw acid on the body of the petitioner's brother, which she was already carrying in a bottle, causing him injuries. He raised alarm, which attracted Nasir Khan, his other brother, who was sent to the police station for the report while Muhammad Saleem alias Samiullah Khan having sustained injuries, was admitted in hospital for treatment. It is further stated that instead of registering the case against the respondents the local police at the instance of respondent No,1, who happened to be a police Inspector, got a case registered under section 326/34 P.P.C. Against the complainant. Aggrieved by such action of the local police, the petitioner filed a writ petition in Lahore High Court and on the directions of a learned Judge of the Court dated 27-2-1988 a case was registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and section 452 P.P.C. Against the respondents at P.S. Bhati Gate, Lahore, vide F.I.R. 24 dated 5-3- 1988, but no action was taken against the respondents. The mentioned case, however, on the basis of bogus enquiry was got cancelled by a Magistrate who was not authorised in law to pass such order. The petitioner being disappointed and aggrieved by the action of the local police resorted to filing a private complaint against the respondents in the Court of Ilaqa Magistrate which was forwarded for trial to the Court of Sessions Judge and was ultimately entrusted to Mr. Muhammad Munir, Additional Sessions Judge, Lahore. The learned trial Court after recording the statement of the petitioner/ complainant dismissed the complaint on 29-9-1988 without recording any evidence. The order so passed is impugned before us.
3. Learned counsel for the petitioner appearing before us contended that the impugned order is contrary to the established principles of law and proper dispensation of justice. He further contended that the petitioner was condemned unheard as no opportunity was afforded to him for producing evidence nor any notice was issued to the opposite party. He further submitted that a legal right was denied to the petitioner and the learned trial Court did not summon the accused persons and dismissed the petition at the early stage without providing suitable time to the petitioner/complainant to prove the case. The learned counsel argued tl)at according to the impugned order, the offence under section 452 P.P.C. At least could be established, but the complaint was dismissed by a strange logic holding that the mentioned offence was' not triable by the learned trial Court.
4. Learned counsel for the State appearing before us also submitted that the decision taken by the learned trial Court was hasty in nature and had no clear legal basis. The learned counsel for the respondents appearing before us was unable to convince us that the impugned order was passed in accordance with the law.
5. The relevant paragraph of the impugned order reads as under:- "I have thoroughly taken into consideration the statement of the complainant. No eye-witness regarding the commission of zina has been mentioned in the statement of the complainant. At the most, as per statement of the complainant offence under section 452 P.P.C. Is made out, which is not triable by this Court. Therefore in view of the above circumstances, case under section 10, Offence of Zina (Enforcement of Hudood) Ordinance No,VII/1979 has not been prima facie made out by the complainant in his statement. Therefore, in the circumstances of the case, it is at the option of the complainant to seek remedy about the offence of section 452 P.P. C. According to law, hence, this complaint is hereby dismissed."
6. On going through the record and hearing the learned counsel for the parties, we find that the observations of the learned Additional Sessions Judge that no offence under section 10 of the Offence of Zina, was made out is premature. The conclusion could have been arrived at one way or the other only after recording evidence. We have gone through the original record of this complaint and have found that the complainant had cited five witnesses in support of his version, but without recording any evidence, the learnd trial Court came to a hasty conclusion, that no offence under the mentioned provisions of the law had been made out.
7. Furthermore, as has been pointed out by the learned counsel for the petitioner, it is stated in the impugned order that at the most an offence under section 452 P.P.C. Was likely to be made out, but the learned trial Court has wrongly held that in the given circumstances that offence was not triable by that Court. His direction to the complainant for seeking remedy about the offence under section 452 P.P.C. According to the law in some other forum has absolutely no legal basis.
8. In the circumstances, we are of the view that the learned trial Court has taken a very hasty step by throwing away the complaint on flimsy grounds. Neither any opportunity was given to the petitioner to produce his evidence nor any notice was issued to the opposite party. We are, therefore, of the view that the impugned order of the learned trial Court is not proper and legal.
9. Consequently, we allow this revision petition, set aside the impugned order, dated 29-9-1988 and direct that the case should be decided on merits by the Sessions Judge himself in accordance with