' TASSADUQ HUSSAIN JILANI, J.---Through this Intra-Court Appeal, the appellants who claim to be husband and wife have challenged the judgment 6-6-1995 passed in Writ Petition No, 3078/95 whereby the learned Single Judge in Chamber while disposing the afore-referred writ petition made the following observations/findings:---
(i) That the appellant (Muhammad Hanif and Mst. Tahira Parveen) should be put under the police custody and sent to the judicial lock-up for production before the Ilaqa Magistrate on 15-6-1995;
(ii) That there is no material with regard to Talak having been given by Muhammad Hanif (appellant No,1) to his previous wife (Mst. Kalsoom Akhtar) and, therefore, they were committing Zina. That divorce could not become effective without a certificate having been issued by the concerned union council; and
(iii) That Abdul Wahid, S.I. Conducted dishonest investigation and he should be suspended and the case should be reinvestigated.
2. The brief facts giving rise to the instant appeal are that respondent No,1 who is complainant in the case registered vide F.I.R. No, 231, dated 21-5-1995 at Police Station New Multan, District Multan filed Writ Petition No, 3078/95 seeking a direction from the Court that the custody of Mst. Tahira Parveen (his daughter) should not be handed over to Muhammad Hanif (appellant No,1) and that the Investigating Officer should be restrained from obtaining any statement of the afore-referred Mst. Tahira Parveen in favour of the said Muhammad Hanif (appellant No,1).
3. In support of this appeal, the learned counsel for the appellants have raised following pleas:---
(i) That the appellants are legally-wedded husband and wife;
(ii) that appellant No,1 had married appellant No,2 on 15-5-1994 after having divorced his previous wife (Mst. Kalsoom); ' that the registration of the afore-referred case was the p:oduct of mala fides as the father of Mst.
Tahira Perveen was unhappy over the marriage. He not only got this case registered but also forcibly got a suit for jactitation of marriage filed purportedly on behalf of appellant No,2 against appellant No,1;
(iv) that in the first investigation conducted by the police, the appellants were found innocent and the criminal case was recommended for cancellation; and
(v) that in view of the law laid down by the Hon'ble Supreme Court in PLD 1971 Supreme Court 677 (Mst. Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another the learned Single Judge could not have made observations which could affect the merits of the criminal case as well as the suit for jactitation of marriage.
4. Learned counsel for respondent No,1 (complainant) has supported the impugned judgment by submitting that the learned Single Judge in Chamber had passed the order for reinvestigation as in the facts and circumstances of this case the initial investigation reflected mala fides and certain material facts were ignored by the Investigating Officer. He further submitted that there is nothing on record to show that appellant No,1 had divorced his previous wife (Mst. Kalsoom Akhtar) and in the subsistence of the earlier marriage, the alleged Nikah with appellant No,2 was not only void ab initio but they were committing congizable offence which could not have been countenanced by law. Referring to the suit filed by Mst. Tahira Perveen (appellant No,2) for jactitation of marriage, the learned counsel added that this, by itself, would show that she disowned her marriage with appellant No,1.
5. Mr. Muhammad Abdullah Yousuf Warraich, the learned Additional Advocate-General who has entered appearance under the directions of this Court, submitted that in view of the pendency of the suit for jactitation of marriage, the learned Single Judge in Chamber could not have made the observations which may not only affect the merits of the pending suit but also of the case registered on the complaint of respondent No,1. He, therefore, submitted that he would not support the impugned judgment to that extent.
6. We have heard learned counsel for the parties and have given anxious thought to the arguments addressed at the Bar.
7. The investigation of a criminal case having been registered under the law is primarily the function of police and this Court as also the Hon'ble Supreme Court have more than once not approved of observations made which are likely to affect the merits of the said case either way.
The functions of judiciary and police are distinct. It is within the domain of police to investigate, reinvestigate or to submit report in terms of section 173,. Cr.P.C. The High Court proceeding under section 561-A, Cr.P.C. Or under Article 199 of the Constitution of Islamic Republic of Pakistan should ordinarily not pass orders in matters which are the exclusive preserve of the police department. In PLD 1971 SC 677 (691) the dictum laid down in AIR 1945 PC 18 was reiterated as follows:- "In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in the matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The function of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Cr.P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then."
' Similarly in PLD 1984 SC 231 (Malik Shaukat All Dogar and others v. Ghttlam Qasim Khan Khakwani and others) it was observed as under:- "S.156---Interference by Courts in the matter of police investigation before submission of the challan---Extent---Order passed by High Court calling for periodical reports about the progress of the investigation was set aside by the Supreme Court in circumstances:.
' On question of divorce also the observations of the learned Single Judge in Chamber cannot be conclusive as they are based on no evidence. Whether a notice of Talaq to the Chairman of Union Council is mandatory under the Injunctions of Islam and any Divorc?, pronounced or written by a husband cannot be ineffective or invalid in Islam just because its notice had not been given to the Chairman of Union Council has been subject of comment by this Court as also the Federal Shariat Court and the august Supreme Court. Precisely this question came up for consideration before the Shariat Appellate Bench of the Hon'ble Supreme Court in 1992 SCM R 1273 (Allah Dad v. Mukhtar and another) and it was observed:- "Muslim Family Laws Ordinance (VIII of 1961), S.7---Notice of Talaq to the Chairman is not mandatory under the Injunctions of Islam and any divorce pronounced or written by a husband cannot be ineffective or invalid in Shariat because its notice had not been given to the Chairman-- -If a woman after obtaining such a divorce from her husband and after the necessary period of Iddat contracts a marriage with a third person, their marriage could not be held as invalid marriage."
' This view was further affirmed in yet another judgment of the Shariat Appellate Bench of the august Supreme Court reported in 1994 SCM R 2098 (Mst. Zahida Shaheen and another v. The State and another) and it was observed:-- "Muslim Family Laws Ordinance (VIII of 1961)---S.7---Divorce--Failure to send a notice to Chairman of Local Council does not render the divorce ineffective in Shariah."
' However, in PLD 1993 Supreme Court 901(916) (Mst. Kaneez Fatima v. Wall Muhammad and another) the august Supreme Court expressed the view that the Court should not question the vires of section 7 of the Family Laws Ordinance in view of the Constitutional constraints and observed as follows:- "In these facts it is to be considered whether strict construction should be given to section 7 of the Ordinance. The provisions of section 7 of the Ordinance have remained controversial from the very beginning and there are conflicting views in general about it. In view of the Constitutional restraints the Courts cannot give any verdict on the conflicting claims challenging or justifying the provisions of section 7 of the Ordinance. However, keeping in view the facts of each case the applicability and interpretation of section 7 has to be construed in the light. In a case where with the consent of both the parties divorce is effected and confirmed in writing under their undisputed signatures section 7 should not be strictly construed particularly in cases where penal provision of section 7(2) is to be enforced because in such cases the parties do not wilfully commit breach and bona fide believe that they have been divorced with the consent of each other and sending of notice to the Chairman, Union Council, is merely a formality. The notice can be sent at any time thereafter to comply with the provisions of section 7."
8. There is yet another aspect of the matter. It is not denied that a suit for jactitation of marriage filed by appellant No,2 is pending decision. According to appellant No,1, appellant No,2 was not a free agent in filing of the said suit and that her signatures were forcibly obtained by her father who is the complainant in the afore-referred case. In the said suit appellant No,2 had filed written statement that she had married appellant No,1 after divorcing his previous wife Mst. Kalsoom Akhtar. Be that as it may, the question of divorce and the subsequent marriage with appellant No,2 were issues which the learned Civil Court was called upon to decide. The West Pakistan Family Courts Act, 1964 confers exclusive jurisdiction on Family Courts to decide issues of valid marriage after recording of evidence and this Court sitting in Writ jurisdiction could not enter into this exercise which of necessity entailed a factual inquiry. In a celebrated judgment in which the facts were slightly different i,e, PLD 1984 SC 95 (Muhammad Azam v. Muhammad Iqbal) the Hon'ble Supreme Court commented upon the powers of the Family Courts on the question of valid marriage in a criminal case in the following words:--- "Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)----Ss.3 & 10(3)---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Evidence Act (I of 1872), Ss.41, 11, 13 & Offence of Zina-bil-Jabar liable to Tazir---Plea of valid marriage by accused---Decision of superior Court deciding issue of Nikah in a criminal case of Zina---Family Court, whether can decide question of valid marriage again---Whether judgment of one or other forum will be relevant under Evidence Act, 1872, if so which forum will have precedence at trial level---Procedure discussed.
Strictly speaking the judgment of the trial Judge under the Criminal Law will not have any determinative effect on the decision before the Family Court if it is to be on the same issue and between the same parties except to the extent it is permissible to refer to it under the law as declared by Supreme Court in the case of Malik Din and another v. Muhammad Aslam PLD 1969 SC
136. However, it cannot be said regarding vice versa situation and thus the judgment by the Family trial Judge would have direct effect on the outcome in the criminal trial if the question of valid Nikah, which already stands decided by the Family Court, is also involved before the Criminal Court.
Therefore, the decision of the Family Court in this behalf will have precedence."
9. For what has been discussed above, the judgment of the learned Single Judge-in-Chamber, dated 6-6-1995 is beyond the ambit of Article 199 of the Constitution of the Islamic Republic of Pakistan and not in consonance with the law declared by the Hon'ble Supreme Court. The same is set aside.
10. Before we part with the judgment, we may observe that we have no manner of doubt that the learned Judge was persuaded by moral considerations and passed the impugned judgment with a view to promote what he thought was just. However, while sittinz in Constitutional jurisdiction, the Court has not only to keep in view the parameters of its lawful authority but also the fact that any moral judgment based on disputed questions of fact besides being fraught with pitfalls can defeat the very purpose for which the exercise is intended.