1. ' NASIM HASAN SHAH, J.--This petition by a husband in a family dispute seeks leave to appeal from the judgment dated 14-1-1988 of the Federal Shariat Court, whereby a Review Petition (Cr.R.P.No,2/L/1987) filed by the petitioner against the judgment passed by the said Court on 17-11- 1987 in his Revision Petition (Cr.Revn.P.No,42/L/1987) was dismissed in limine.
2. ' The petition is out of time by 56 days but we condone the delay and proceed to dispose of the case on merits in the interests of justice.
3. ' Briefly stated the facts forming the background are that the petitioner, Haji Bakhtiar Said Muhammad was married to Mst. Dur-e-Shahwar (respondent No,1) on 23-7-1972 and during the period of this wedlock three children, namely, Aisha Bakhtiar (now 14 years); Mehrunnisa (now 12 years); and Ali Ahmad Bakhtiar (now 10 years) were born.
4. ' On 25-4-1983, the petitioner executed a Deed of Divorce wherein it was averred that he was divorcing his above wife because of her unchaste character; that the three children (two daughters and a son) born to her were the result of adultery and were not from his loins; that his wife (Mst. Dur-e-Shahwar) had not been living as a wife in his house right from the beginning of the marriage and she was lax in her movements and habitation; that she never cared for the family traditions and never mended her ways. Accordingly, the petitioner finding it impossible to continue this relationship any further had pronounced 'talaq' thrice and declared that she was no longer lawful to him as a wife and that at the expiry of the three months' time of 'iddat', she may marry wherever she likes. The petitioner also stated that even earlier, he had orally pronounced the required tripple 'talaq'.
5. ' After receiving this divorce deed, Mst. Dur-e-Shahwar instituted a suit before the Judge Family Court, Pakpattan on 16-7-1983 for the recovery of maintenance for her children and the petitioner in his reply reiterated the above allegations and also disowned the children. In the suit filed by her for the recovery of dower in the Court of Civil Judge, Pakpattan the petitioner again took up the same defence.
6. ' On 7-5-1984, Mst. Dur-e-Shahwar also filed a private complaint under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979) alleging that the allegations contained in the Divorce Deed constituted an offence under section 7 of the Ordinance. The complaint was entertained by the learned Additional Sessions Judge-III, Pakpattan, who after making a preliminary enquiry passed an order dated 26-8-1984 that a prima facie case of offence under Section 7 of Qazf Ordinance was made out against the petitioner and that bailable warrants of arrest may be issued to him.
7. ' Accordingly, the process for appearance of the petitioner for 16-9-1984 was issued but it did not mention the specific offence of 'Qazf therein.
8. ' On 16-9-1984, the petitioner, however, made an application under Section 249-A of Cr.P.C. Praying that the Court may withdraw the process issued against him, set aside the proceedings and exonerate him. The petitioner also applied under Section 265-K of Cr.P.C. For the same relief. The prayer was not granted and the petitioner approached the Federal Shariat Court by a revision. The said revision came up for hearing before the learned Chief Justice, Mr. Justice Gul Muhammad Khan but was referred to the Full Bench for examining the following two questions:--
(i) Whether section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 shall be applicable to the case of spouses? And
(ii) whether section 7 and section 14 or any of them is repugnant to verses of Sura XXIV (Nur)?
9. ' The Full Bench, after thoroughly examining these questions, disposed of the reference by its judgment dated 12-11-1986 holding that none of the provisions of Section 7 or 14 of Qazf Ordinance are partly or wholly repugnant to the Injunctions laid down in this regard in Verses 4 to 9 of Sura XXIV (Nur). The judgment is reported in PLD 1986 F SC 187.
10. ' The case was thereafter directed to be placed before a Bench for disposal in the regular course.
11. Accordingly, this revision then came up before a Division Bench and as the learned Judges were of the view that the matters now left for decision should be decided by the trial Court in the light of the Full Bench's judgment PLD 1986 F SC 187 and as enunciated in the law applicable. This order was passed after inviting the counsel from both the sides to state their point of view and none of the counsel appearing for the parties raised any objection. Accordingly, the order impugned in the revision was set aside and the case remanded for a fresh trial to the learned Sessions Judge, Sahiwal. This order was passed on 6-7-1986.
12. ' The case was then sent to the trial Court (another Additional Sessions Judge) who again issued a process for summoning the accused/petitioner.
13. ' Aggrieved by this order, the petitioner again challenged it by a revision before the Federal Shariat Court. This revision was disposed of by the Federal Shariat Court by its order dated 17-11-1987 with the following directions:--
(a) Both sides after arguments agreed that some evidence shall have to be led by the parties in the light of the Full Bench decision for the trial Court to decide whether the trial should take place under section 7 or under section 14.
(b) The learned Additional Sessions Judge shall allow the parties to produce evidence with regard to the facts prior to the pronouncement of 'talaq' by the petitioner so that the trial Court is in a position to decide about the controversy as regards the legitimacy or otherwise of the children.
14. ' Feeling dissatisfied with this order, the petitioner filed a review petition. This review petition was dismissed by the Federal Shariat Court by the impugned order. Herein it has, inter alia, been observed:-- "It is, however, undeniable that the Sessions Court has jurisdiction to decide a case both under Sections 7 and 14 and competent to pass orders thereunder. That Court is thus quite competent to frame a charge and proceed to decide the case in the light of the observations of the Full Bench of this Court, which was constituted to consider some of the questions raised about this very case.
15. The Bench which heard the revision petition No,31/I of 1984 thereafter accepted the prayer made by the learned counsel on the two sides and remanded the case, for fresh trial according to law, to a Court other than the one which passed the impugned order. In the second revision petition (Cr.R.-42/87) the two counsel agreed that the case be sent back to the trial Court to produce such evidence, as regards the matter prior to 'Talaq' and the allegations and decide which procedure is to be adopted to resolve the controversy. There was thus no illegality about the proceedings or the jurisdiction of the trial Court."
16. ' Another relevant observation made was:- "The important point to be noted is that Sections 7 and 14 of the Qazf Ordinance need different modes of trial and the Court must have the necessary facts before it. In the present case, the offensive material is known but the mode of trial is to be determined. That depends on some other facts which may or may not already be there. The Court in such a situation may be guided by section 236, Cr.P.C. The cardinal principle for guidance is that the accused must not be prejudiced and should know the case to defend. Thus, without binding the trial Court, in the exercise of its jurisdiction, we suffice it to say that object of trial under Sections 7 and 14 of the Qazf Ordinance, which is a special law, cannot be sacrificed at the altar of any technicality of procedure. The trial Court thus must conduct the trial as warranted by the facts of the case but in a manner not against law or norms of justice."
17. ' The conclusion was thus expressed:- "In any case none of them is sufficient to interfere at this stage or to set the controversy at rest and we should not delay the trial of the case any more."
18. ' Hence this petition for leave in this Court.
19. ' Sh. Shaukat Ali, learned counsel for the petitioner, has argued that the accusations contained in the divorce deed dated 25-4-1984 do not make out any case of Qazf as the petitioner and respondent No,1 were husband and wife at the relevant time and that the accusations made in the divorce deed were made during the subsistence of the marriage. According to him, no case of Oazf is made out nor the procedure for lian is called for as the divorce was not complete and the accusations were contained in the divorce deed and pertained to the period when the spouses were man and wife.
20. However, the short answer to these submissions is that when the case was sent back for disposal by the Full Bench to the Bench concerned, the parties agreed before it that the case may be sent back to the trial Court for disposal of the outstanding questions. Accordingly, by its order dated 6- 7-1986, the said learned Bench remanded the case for afresh trial according to law. The petitioner, however, is now objecting on one ground or another to the further continuance of this trial. But he cannot succeed because the trial is now taking place in pursuance of the aforementioned order of the Federal Shariat Court dated 6-7-1986. If this order was erroneous or unnecessary it should have been challenged before this Court but this was never done. Hence the proceedings, which are taking place in pursuance thereof, cannot now, with any justification, be objected to.
21. ' There is no force in this petition which is, accordingly, dismissed.