' This revision petition under section 439, Cr.P.C. Is directed against order, dated 19-11-1995 passed by the learned Additional Sessions Judge, Lahore whereby he dismissed the complaint of the petitioner filed against the respondents under section 5, Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 read with sections 419, 420, 467 and 471, P.P.C.
2. It was contended in the complaint that the petitioner was married to Mst. Maqsoodan i,e, respondent No,2 through her father i,e, respondent No,1 on 6-3-1981. This marriage was allegedly arranged by the parents of the parties. Two sons and a daughter were born from the aforesaid wedlock. It is alleged that the respondent No,2 Mst. Maqsoodan was shown as virgin at the time of her marriage with him and that her age was given as 25 years. Later on the petitioner came to know that he was defrauded as the age of respondent No,2 was 31 years and not 25 years as claimed by her in the Nikah deed. Likewise she was previously married and remained undivorced.
The petitioner allegedly inquired into the matter and came to know a week earlier to the institution of the complaint, that respondent No,2 was earlier married to Captain Muhammad Imran on 28-3- 1980 and that as such she was not virgin as claimed by her during Nikah with him. The petitioner instituted the complaint that he was defrauded and as a consequence deprived of household effects valuing lacs of rupees. It was further alleged in the complaint that respondent No,2 was guilty of the offence of Zina as she was never allegedly divorced by her earlier husband namely Captain Muhammad Imran.
3. Lastly it was contended that the petitioner was under bona fide impression that respondent No,2 was his legally-wedded wife under Shariah, but after the knowledge of the abovementioned facts, he thought that he was cheated and defrauded.
4. The complaint was instituted in the Court of Illaqa Magistrate and was sent up for trial to the Court of Session. It came up before the learned Additional Sessions Judge, Lahore who recorded the statement of the complainant and came to the conclusion that the complaint was filed with ulterior motive and that there was no sufficient reason to proceed with it. In .This respect the learned Additional Sessions Judge concluded that marriage between the petitioner and respondent No,2 was solemnized on 6-3-1981 and they remained as husband and wife till the marriage ended after the petitioner had divorced respondent No,2 in March, 1995. The petitioner admitted in his preliminary statement that a suit for maintenance was filed against him and a decree was passed regarding payment of maintenance to the minor children in the year 1987. As such it was held that the present complaint was a counterblast of the said decree and has been filed in order to deprive the minor children of the maintenance allowed by denying them legitimacy.
5. In the present petition, the learned counsel for the petitioner contend that the learned Additional Sessions Judge acted in haste to dismiss the complaint without holding a proper inquiry as envisaged by section 202 read with section 204, Cr.P.C. In this context it was contended that the learned trial Judge had t6 see whether a prima facie case was made out or not and that he had not to give a finding regarding the acquittal or conviction. Production of Nikah deed Exh.P.B.
Showing marriage between respondent No,2 and Captain Muhammad Imran was enough to show that there was a case worth of judicial test. It was, therefore, alleged that the learned trial Judge.
Fell in error and committed material irregularity in dismissing the complaint after recording the statement of the complainant alone.
6. I have considered the foregoing submissions. It is true that there is Nikah deed Exh.P.B. Which shows that Nikah of Maqsoodan Lala Rukh daughter of Major Maula Buksh was solemnized with Captain Muhammad Imran on 28-3-1980, but there is also a Nikah deed between Mst. Maqsdodan daughter of Major Maula Buksh with Captain Habib-ur-Rehman i,e, the present petitioner showing the date of Nikah as 6-3-1981. The petitioner/complainant had lived with respondent No,2 as her husband which gave birth to three children as aforementioned. It cannot be said that during this long period of wedlock the petitioner/complainant remained unaware of the marriage of respondent No,2 with aforesaid Captain Muhammad Imran. Even otherwise the offence of Zina cannot be presumed because the petitioner was also wedded with respondent No,2 and she was shown to be a free woman. If her marriage subsisted with Captain Muhammad Imran the latter would have not kept quiet to challenge the subsequent Nikah. The marriage is a public affair and not a secret matter, nor it can be kept hidden particularly when both the spouses have been residing together and were enjoying marital life out of which three children have born. In these circumstances, it will be perverse to hold that there was commission of offence of Zina. On the contrary finding of the learned trial Judge seems to be quite weighty that the children have been given maintenance allowance through a decree of the Court and since the marriage has broken up, therefore, the petitioner with the mind to avoid decree may have brought this complaint to deprive the children of legitimacy and as a consequence to make the maintenance decree fruitless. Even otherwise the petitioner kept quiet for a long time after divorcing respondent No,2 and brought this complaint which suffers from laches. In such a situation, it was neither necessary nor mandatory under section Cr.P.C. To direct any inquiry or investigation. It is made clear in section Cr.P.C. That a complaint may be dismissed, if no sufficient ground is found, after considering the statement on oath (if any) of the complaint and the result of investigation or inquiry (if any) under section 202, Cr.P.C. The wording of section 203, Cr.P.C. Does not make it mandatory that an inquiry A should be necessarily ordered under section 202, Cr.P.C. Before the provisions of aforesaid section are to be invoked. On the contrary it is clear that the Court competent to dismiss the complaint after taking into account the statement of the complainant or if an inquiry has already been directed under section 202, Cr.P.C., then after considering the result of such investigation or inquiry, on its coming to the conclusion that in its judgment no sufficient ground existed to proceed further with the complaint. In the instant case, the learned Additional Sessions Judge had come to the conclusion after considering the statement of the petitioner/complainant that the complaint was mala fide and as such had dismissed the same.
7. The finding of the learned Additional Sessions Judge is based on the statement of the complainant and the averments in the complaint itself. It has not been shown to me that the view taken by the learned Additional Sessions Judge is perverse, arbitrary or capricious so as to call for interference on the provisional jurisdiction of this Court. The revision petition being meritless is dismissed in limine.
Revision .