TANZILUR RAHMAN, C.J.--- This is a revision petition undo; Article 203-DD of the Constitution of Pakistan, 1973, against the judgment dated 7July, 1990, passed by the Additional Sessions Judge, Rawalpindi, acquitting the respondents.
2. The petitioner filed a private complaint dated 13-11-1982 against the respondents under section 10/16 of the Offence of Zina (Enforcement of Hudood)- Ordinance, 1979, in the Court of Ilaqa Magistrate, alleging that respondent No-2 was his legally-wedded wife and that three children were born out of the wedlock. She was, however, under the influence of respondent No.1 for quite some time. Respondent No.2 went away from the house of the complainant in the company of respondent No.1 and put in the `Darul Aman'. She filed a suit for dissolution of marriage which was withdrawn by her. Later on respondent No.1 took away the said wife of the complainant to his own house and they were living there in' adultery. The respondents were summoned by the learned Judge who charged them for the offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and further charged respondent No.1 under section 16 of the said Ordinance. The respondents having denied the charge were tried under the aforesaid provisions of law. The petitioner examined himself and produced one witness in support of the complaint. The respondents/accused were examined under section 342, Cr.P.C. They also produced two defence witnesses and produced a number of documents in support of the plea taken by them that the petitioner having divorced respondent No.2, she married respondent No.1 and since then they were living as husband and wife.
3. It appears that respondent No.2 filed a suit for dissolution of marriage against the petitioner in the Family Court on 22-12-1979 which was withdrawn on 2-6-1981 on the ground that the petitionerth had divorced orally followed by divorce-deed on 17-5-1981 and subsequently on 5-8-1981 she married with respondent No.1.
4. The petitioner had also filed a suit for restitution of conjugal rights on 5-4-1982 and got an ex parte decree against respondent No.2 which on appeal was set aside.
5. The respondent No.2 then filed revision application before this Court for stay of proceedings of the criminal case against her. This Court by order, dated 11-12-1984, passed the following order thereon:-- "Both the learned counsel for the private parties agree that the criminal case under revision be transferred to another Additional Sessions Judge of Rawalpindi to be nominated by the learned Sessions Judge, Rawalpindi where after the respondent shall move an application in the light of the observation made by Shariat Appellate Bench of Supreme Court in Muhammad Azam v.
Muhammad Iqbal and others PLD 1984 SC 95 for the transfer of the civil case to the same Additional District and Sessions Judge trying the criminal case who shall first decide the civil matter. Order accordingly. It will be much appreciated if both the matters are decided expeditiously by the learned Additional Sessions Judge so nominated. The criminal case shall remain stayed till the decision of the civil matter."
6. In pursuance of the above order the suit for restitution of conjugal rights filed by the petitioner herein proceeded first. The learned Family Court by its judgment-dated 14-4-1986 holding the divorce-deed-dated 17-5-1981 to be valid, dismissed the petitioner's suit for restitution of conjugal rights. The petitioner being aggrieved by the judgment dated 14-4-1986 of the learned Additional District Judge/Family Court, Rawalpindi, filed civil Miscellaneous application in the High Court of Lahore which was registered as No.1 of 1988 under section 14 of the Family Courts Act, 1964 which by order dated 10-1-1989 was dismissed for non-prosecution. No further steps appear to have been taken by the petitioner in that behalf. The judgment, dated 14-4-1986 of the learned Additional District Judge/Family Court thus became final.
7. The criminal proceedings, after the decision of the suit for restitution of conjugal rights were restarted and the learned Additional Sessions Judge by his judgment-dated 7-7-1990, acquitted the respondents. The relevant portion is reproduced as under:-- "The complainant did not involve the accused for abduction and Zina in his written statement filed to contest the suit for dissolution of marriage. The complainant was present in the Family Court when Rashida Akhtar recorded statement for withdrawal of the suit an attributed written divorce to him. The complainant did not object to it. The complainant admitted his visits to Darul Aman for conciliation with Rashida Akhtar. Any irregularity of visiting a woman in Darul Aman without order of the Magistrate does not vitiate the visits and it corroborated independent and disinterested testimony of Miss Saeeda Khan that Allahdad handed over divorce deed to Rashida Akhtar at Darul Aman. The complainant never attempted for comparison of his signatures on the divorce-deed from an expert. The provisions of section 7 of Muslim Laws Ordinance being repugnant to the Injunction of Islam did not effect the validity of divorce in spite of the fact that Chairman of the Union Council has never been intimated. The marriage of the accused before expiry of 90 days does not render it void and at the most it was an irregular marriage. The testimony of the complainant and Mansabdar failed to establish the charge of abduction because they had not seen enticement by Mukhtar accused. The wedlock of the accused have given birth to a child and the complainant's evidence failed to establish the allegation of Zina. As a result, I acquit both the accused from the charges against them. They are on bail and have been set at liberty. Their bail bonds are discharged."
8. Learned counsel for the appellant, took a plea that in the absence of notice under section 7 of the Muslim Family Laws Ordinance, 1961, the divorce did not become effective. This Court in the case of Muhammad Sarwar and Mst. Shahida Parveen v. The State PLD 1988 FSC 42 relying on Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169 observed that:-- "That position, however, stands radically changed since the decision of the case of Mirza Qamar Raza in which it was held that section 7 making it mandatory to give notice to the Chairman in every form of Talaq is repugnant to Qur'an and Sunnah ... We have gone through the judgment in Mirza Qamar Raza's case and appreciate that the effectiveness of the Talaq cannot be subjected- to the service of notice on the Chairman ... Here it may also be mentioned that it is outside the jurisdiction of this Court to declare a statutory law or custom or usage which has the force of law as repugnant to Qur'an and Sunnah if it inter alia relates to Muslim Personal Law. Admittedly the question of Talaq falls in that field. In such a situation this Court is obliged to follow the statutory law as interpreted by the Supreme Court and in its absence that of the High Court in whose jurisdiction the matter would fall otherwise as held in case of Mst. Farishta PLD 1981 SC 120 ... Thus the Sindh High Court, in the present circumstances, had the authority to declare any provision of Muslim Personal Law to be repugnant to Qur'an and Sunnah and this Court is obliged to follow that decision.
In the case in hand the Sindh High Court has declared section 7 of the Muslim Family Laws Ordinance, 1961 as repugnant to Qur'an and Sunnah and we are bound by the conclusion. So in that situation the pronouncement of written Talaq could not be held invalid just for the reason that no notice of it had been served on Chairman."
In view of the above, the plea of the absence of notice so as to make the divorce ineffective is not tenable.
9. After going through the evidence with the assistance of the learned counsel for the parties we find oursevles in agreement with the conclusion arrived at by the learned trial Judge that the complainant failed to establish the allegations of abduction and Zina. We do not find any illegality or irregularity 8 in the impugned acquittal judgment. Therefore, we do not feel inclined to exercise our revisional jurisdiction as provided under Article 203-DD of the Constitution. The revision petition is, therefore, dismissed.
N.H.Q./735/FSC