' TANZIL-UR-REHMAN, C. J.---This is a Criminal Revision filed under Article 203-DD of the Constitution of Pakistan, 1973 against judgment dated 15-1-1991 passed by VIIIth learned Additional Sessions Judge Hudood Court Karachi East in complaint No,241 of 1989 under sections 7 and 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.
2. The petitioner was married to respondent No,1 at Karachi in 1975 and five children were born out of the said wedlock. It is alleged that the respondent was not an earning hand and used to force the petitioner to indulge in immoral acts and to earn for him. Besides, he was a sexual pervert and was having habit of committing sodomy upon her. However, petitioner all the time resisted and never involved in immoral acts. In 1988 Respondent No,1 went to Japan. In his absence the petitioner filed Family Suit No, 1000/88 for dissolution of her marriage in the Court of learned IVth Family Judge, Karachi Central. The service of summons of the family suit was effected upon the respondent at Japan and he came back to Karachi.
3. On 14-1-1989 the respondent came to flat of the petitioner and brought with him a police party of Shahra-e-Faisal Police Station, Karachi. The petitioner, her parents, brothers and children were taken to the police station, where they were abused, insulted and humiliated by the police at the instance of the respondent. The petitioner was forced to sign certain documents purported to be compromise deed for withdrawal of family suit. The petitioner and family members were then released by the police.
4. That after coming back, the petitioner refused to live with the respondent and withdraw her family suit. The respondent got registered F.I.R. No, 24 of 1989 under section 307/341/34, P.P.C. At Police Station Shahra-eFaisal, Karachi East against the petitioner and others. In that F.I.R. The respondent levelled allegations against the petitioner that he suspected illicit relations betweeen the petitioner and co-accused Shahabuddin.
5. That on 25-1-1989 the respondent again came to the flat of the appellant. He abused and threatened the petitioner of dire consequences one the allegation of her illicit connection with co- accused Shahabuddin. The petitioner in the aforesaid circumstances took shelter in Darul Aman on 26-14989. She remained there for a period of nearly three months. The petitioner then made an application for bail before arrest before the learned Sessions Judge, Karachi in the aforementioned F.I.R. No, 24/89 under section 307/341/34, P.P.C.. The respondent opposed the said application on the ground that the petitioner was living with co-accused Shahabuddin and was committing Zina.
On 19-3-1989 the learned Sessions Judge dismissed the bail application of the appellant with the following observation: "It would further appear that the applicant who is wife of the complainant had not only disposed of her house without the consent and knowledge of her husband but also started living with one Shahabuddin in other flat after or before filing a suit for dissolution of marriage on 22-12-1988. In the face of serious allegations against the applicant, indicating her complicity in the commission of the crime and living with strangers she is not entitled to the concession of bail as she has not alleged any mala fides on the part of the complainant or the local police."
' However, the petitioner was allowed pre-arrest bail by the High Court of Sindh at Karachi.
6. On or. About 10-4-1989 the petitioner and her four children came back from Darul. Aman. On coming back home it came to the knowledge of the petitioner that the respondent had launched propaganda campaign against her in the locality that the petitioner had committed Zina with Shahabuddin and as such she was sent to jail/Darul Aman alongwith her four children. Such false allegation of Zina seriously disturbed the petitioner and caused her mental shock. Hence she filed the aformentioned complaint case before the learned Sessions Judge Karachi East, which was transferred to the VIIIth Additional Sessions Judge (Hudood Court), Karachi East which resulted in the acquittal of the respondent.
7 We have heard the learned counsel for the petitioner as well as the State.
As borne out of the complaint the respondent is alleged to have committed the offence of Qazf on the following three occasions which according to the petitioner renders the respondent liable to Hadd punishment for Qazf:--
(i) F.I.R. No, 24/89 lodged by the respondent against the appellant and co-accused Shahabuddin under section 307/341/34, P.P.C. Contains an allegation that the respondent suspected illicit relations of the appellant with co-accused Shahabuddin, and this was the motive of the offence under section 307/341/34, P.P.C.
(ii) Respondent levelled allegation of Zina and stated before the learned Sessions Judge, Karachi East, that the appellant was living with co-accused Shahabuddin.
(iii) The respondent propagated in the locality as well as relations of the appellant that the appellant was sent to jail/Darul Aman for commission of the offence of Zina with Shahabuddin.
8. We have read with the learned counsel for the petitioner the evidence of the petitioner as well as two witnesses Mst. Nasim mother of the petitioner and Salim Ahmad her brother.
9. P.W.1 petitioner in her statement before the learned trial Judge, told about some applications which the respondent had made to Police Station, Shahra-e- Faisal wherein he had stated that she has got illicit terms with Shahabuddin. We asked the learned counsel to show us that application as it was not filed. He showed his inability to produce any such application.
10. Regarding the allegation that during the course of argument of the pre-arrest application before the learned Sessions Judge, Karachi the respondent levelled allegation of committing Zina, no witness from the Court, much less to say her own advocate in the said application, was produced. Allegation, therefore, remains totally unsubstantiated.
11. As regrads the launching of propoganda in the locality by the respondent against the petitioner that she was sent to Darul Aman on account of her having illicit relations with accused Shahabuddin, she produced her mother and brother. The perusal of the deposition of P.W.2 Mst.
Nasim her mother bears out following statement: "Mehmood Khan informed Mohallah people that Naheed is confined in jail, because she had illicit terms with Shahabuddin."
' P.W.3 Salim Ahmad petitioner's brother also stated the same thing as saying "in the absence of Mst. Naheed accused Mehmood Khan levelled false allegation against Nahid that she had illicit terms with Shahabuddin. Therefore, she is confined in jail". In cross-examination P.W. 2 stated "I cannot produce any person as a witness before whom accused Mahmood Khan levelled false allegation against his wife." The above statements of P.Ws. 2 and 3 shows that the allegation by the respondent against the petitioner was neither made to them or to any one else in their presence.
Not a single witness from the entire Mohallah was produced by the petitioner before the learned trial Judge.
12. The learned counsel for the petitioner, however, submitted that during the inquiry under section 200, Cr. P.C. By a Magistrate, she had produced one person Mohammad Azam from the Mohallah, who could not be produced before the trial Court as he had gone to Dubai. The learned counsel contended that his evidence should have been taken into consideration by the learned trial Judge as the same was relevant. Reliance was placed by him on the provision of section 47 of the Qanun- e-Shahadat, 1984. The said provision reads as under: "Relevancy of certain evidence for proving in subsequent proceeding, the truth of facts therein stated: Evidence, given by a witness in judicial proceeding, or before any person authorised by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: ' Provided that: ' The proceeding was between the same parties or their represent ativesin-interest; the adverse party in the first proceeding had the right and opportunity to cross-examine; the questions in issue were substantially the same in the first as in the second proceeding.
' Explanation.--A criminal trial or inquiry shall be deemed to be proceeding between the prosecutor and the accused within the meaning of this Article."
Admittedly, the statement of Muhammad Azam recorded by a Magistrate holding inquiry under section 200, Cr.P.C., would have been relevant for the purpose of proving the fact in issue only if respondent had the right and opportunity to cross-examine him. The statement was made behind the back of the respondent. He was not present and had no opportunity to cross-examine the said Muhammad Azam. In any case, no attempt was made to satisfy the trial Court that his evidence could not be obtained without an amount of delay or expense which, under the circumstances of the case, was unreasonable. As such the plea of section 47 of the Qunun-e-Shahadat is not available to the petitioner.
13. For the aforementioned reasons, we do not consider it to be a fit case for the exercise of our jurisdiction under Article 203-DD of the Constitution of Pakistan, 1973. The revision petition is, therefore, dismissed in limine.