KHAWAJA MUHAMMAD SAEED, J.- This revision petition is directed against the order of District Criminal Court Muzaffarabad, passed on 28th of November, 1991.
2. The facts giving rise to the present controversy briefly stated are that Muhammad Shafi respondent lodged a written report with police station Muzaffarabad alleging that his wife Mst.
Salim Akhtar was abducted by altaf Hussain with the connivance of Ghulam Haider, Muhammad Yunus and Mst. Resham Jan, on the 22nd of May, 1990, with a view to commit zina. In the light of the report, the police conducted investigation and finally on 5th of September, 1990 put up challan under Sections 10, 16 and 19 of the Offence of Zina (Enforcement of Hadood) Act.
3. During the pendency of the aforesaid case, on 15th of August, 1990, Muhammad Shafi complainant moved an application wherein he contended that his wife Mst. Salim Akhtar is residing with accused persons, namely, Ghulam Haider and Altaf Hussain and Altaf was committing adultery with her. Paras 2 and 3 of the application being relevant, are reproduced here:- {{URDU TEXT MISSING}} On this application, a notice was issued to the petitioner and other co-accused mentioned therein.
The accused-petitioner after obtaining the copy of this application, moved an application before the District Criminal Court Muzaffarabad on 28th of October, 1990 under Section 14 of the Offence of Kazaf {Enforcement of Hadood) Act of 1985. In this application she contended that as false imputation of unchastity has been levelled against her by her husband, therefore, he may be proceeded against, under the above mentioned provisions of law and her marriage may also be dissolved.
4. On 29th of January, 1991, the respondent filed objections contending that petitioner was married to him and during the period of their wedlock, seven children were born out of whom three are alive. In para 4 of his objections he denied to have accused his wife of adultery. However, he again repudiated the charge that accused, Altaf Hussain was residing in the house of the father of the petitioner. For that reason, he prayed that bail allowed to the petitioner, may be cancelled. Para 4 of the objections, being relevant is reproduced below: - {{URDU TEXT MISSING}}
5. The District Criminal Court vide impugned order, dismissed the application on the ground that marriage of the parties cannot be dissolved as the suit for dissolution of the marriage was pending before the learned Sub Judge, Muzafarabad. The petitioner should peruse her suit and seek remedy for dissolution of marriage from that Court. It was further held that in a previous :ase, the petitioner and other co-accused were acquitted by the Courts, by giving benefit of doubt, therefore, strictly under the Shariat Law, the proceedings of li'an' could not be taken against the husband (respondent).
6. Khawaja Abdus Samad, the learned Counsel for the petitioner, in this background of the facts of the case, argued that even in the past, the respondent levelled charges of zina against the petitioner, which he could not prove, resultantly the petitioner as well as all other relatives were acquitted by the Courts. During the pendency of that challan he moved an application wherein his wife, the present petitioner. The District Criminal Court was bound to have allowed the procedure as envisaged under Section 14 of the afore-said Act. He further argued that as imputation of unchastity was levelled during the pendency bf the proceedings of the case, therefore, the District Criminal Court was the sole 'corum for the redress of the relief. The said Court has wrongly refused to proceed against the respondent. He further argued that the offences punishable under the aforesaid Act were triable by the District Criminal Court Muzaffarabad.
7. As against this, Mr. Shahid Hamid, the learned Counsel for the respondent argued that the Court below had no jurisdiction to dissolve the marriage as on the basis of 'Li'an', Civil Court is fully empowered to allow a decree of dissolution of marriage to a wife. The District Criminal Court Muzaffarabad has rightly refused this prayer to the petitioner. He further argued that under Section 17 of the Act, all offences punishable in this Act, have been made triable by the Tehsil Criminal Court, except those falling under Section 7 or sub-Section (4) of Section 14 of the Act which have been made triable by a District Criminal Court. As the case in hand did not attract the provisions of Section 7 or sub-Section (4) of Section 14 of the Act, therefore, the District Criminal Court Muzaffarabad had no other option but to reject the prayer.
8. I have considered the respective submissions of the learned Counsel for the parties and have also gone through the entire record of the case minutely.
9. For the proper perception of the point involved, it is imperative to have a reference to the relevant provisions of Section 14 of the Act which runs as under:- "14. Lian.- (1) When a husband accuses before a Court his wife who is muhsan within the meaning of section 5, of zina and the wife does not accept the accusation as true, the following procedure of lian shall apply, namely:-
(a) the husband shall say upon oath before the Court: " I swear by Allah the Almighty and say I am surely truthful in my accusation of zina against my wife (name of wife) and, after he has said so four times, he shall say, "Allah's curse be upon me if I am a liar in my accusation of zina against my wife (name of wife); and
(b) the wife shall, in reply to the husband's statement made in accordance with clause fa), say upon oath before the Court: "I swear by Allah the Almighty that my husband is surely a liar in his accusation of zina against me and, after she has said so four times, she shall say: Allah's wrath be upon me if he is truthful in his accusation of zina against me."
(2) When the procedure specified in sub-section (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.
(3) Where the husband or the wife refuses to go through the procedure specified in sub-Section (1), he or, as the case may be, she shall be imprisoned until-
(a) in the case of the husband, he has agreed to go through the a foresaid procedure; or
(b) in the case of the wife, she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true.
(4) A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of zina liable to hadd under the Imposition of Hudood for the Offence of Zina Ordinance, 1979."
10. Jurisdiction has conferred by Section 17 of the Act, the proviso of which being relevant, is reproduced below:- " Provided further that offences punishable under this Act shall be triable by a Tehsil Criminal Court except offences punishable under Section 7 or sub-section (4) of Section 14, which shall be triable by a District Criminal Court."
11. The accusation of zina admittedly in this case, was levelled by husband (respondent) before the Tehsil Criminal Court Muzaffarabad, which under the Act, was duty bound to follow the procedure as laid down under Sub- Section (1) of Section 14 of the Act and in consequence of those proceedings, if the accusations of zina levelled by the husband', were denied on oath by the wife in the terms as laid down under Sub-Clause (b) of sub-Section (1) of Section 14 of the Act, the Court should have passed an order dissolving the marriage of the parties. Under law, such order shall operate as a decree for dissolution of marriage against which, no right of appeal is provided. The matter can be referred to the District Criminal Court only if the wife has accepted the husband's accusation as true.
12. I n this case, the trial Court, failed to act in accordance with law. The petitioner, on wrong advice, after obtaining the copy of the application, moved the District Criminal Court praying that her marriage may be dissolved and that as her husband has levelled false accusation of zina against her, as such he may be punished under law. The allegation of zina, as said earlier, were not levelled by the husband (respondent) before the District Criminal Court, therefore, this court under Section 14 of the Act had no jurisdiction to observe the procedure laid down under sub-Section (1) of Section 14 of the Act and pass an order of dissolving the marriage of the parties. Therefore, while refusing the prayer the District Criminal Court Muzaffarabad has committed no error in law.
13. The second prayer seeking punishment was also refused by the District Criminal Court as the Court had the jurisdiction in respect of these offences which are punishable under Section 7 or under sub-Section (4) or Section 14 of the Act,
14. As the controversy did not attract the application of Section 7 or sub- Section (4) of Section 14, as such while refusing this prayer to the petitioner, the said Court has committed no .Error in law.
15. In this case, as said in the early part of this order, the Tehsil Criminal Court Muzaffarabad failed to proceed in accordance with the provisions of Section 14 of the Act. The petitioner can move the said Court, as imputation of unchastity was levelled against her before that Court if so advised because there is no ban of limitation.
16. Keeping in view the aforesaid legal position of the case, the revision is without merits. The same stands dismissed.