' Today only Criminal Miscellaneous No,2 of 1998 is fixed before thi: Court with a notice to the respondent. However, all the parties have agree( before me today that they have no objection if the main revision petition is finally decided today after hearing the arguments, of all the sides.
Resultantly, have heard the learned counsel for the petitioner, the learned counsel for the State and the learned counsel for respondent No,2 at some length on the merit of the main revision petition so as to decide it finally.
2. The facts giving rise to this petition are that on 27-2-1992 Mst. Khadij Khatoon, the present petitioner, allegedly got married to one Khurshid Khan who is the son of Matta Khan complainant, respondent No,2, through Nikahnama placed on this file as Annexure-F. It is alleged that on 7-11- 1996 of the petitioner had left the house of the said Khrushid Khan and had started living with one Muhammad Ramzan who had allegedly enticed her away Consequently, F.I.R. No,146 was lodged at Police Station Noorpur, District Khushab by Matta Khan respondent against the present petitioner and her cc accused Muhammad Ramzan for an offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 109, P.P.C. The petitioner and the said Muhammad Ramzan were arrested by the local police and were subsequently admitted to bail by the learned trial Court. On 20-9-1997 the petitioner filed a suit for jactitation of marriage against Khurshid Khan son of respondent No,2 before the learned Family Court, Jauharabad, District Khushab claiming therein that she had never got married to the said Khrushid Khan and that she had in fact entered into a lawful marriage with Muhammad Ramzan co-accused through a valid Nikahnama registered on 28-2-1992. After completion of the investigation the local police submitted a challan in that regard and the said criminal case is now pending before .The learned Additional Sessions Judge, Khushab wherein a charge has already been framed against the petitioner and her co-accused Muhammad Ramzan and statedly the trial is about to commence.
The suit for jactitation of marriage filed by the petitioner against Khrushid Khan son of respondent No,2 is presently pending before the learned Family Court at Jauharabad, District Khushab wherein a written statement has already been filed by the said Khurshid Khan and evidence in that case has also been partly recorded. Faced with this predicament the petitioner applied before the learned criminal Court for stay of criminal proceedings during the pendency of her suit for jactitation of marriage before the learned Family on 16-10-1997. However, vide impugned order, dated 21-2-1998 the learned Additional Sessions Judge, Khushab was pleased to dismiss that application. Hence the present petition before this Court.
3. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and the complainant, respondent No,2, and have also gone through the record of this case with their assistance.
4. It has been argued by the learned counsel for the petitioner that the factum of the petitioner's alleged marriage with Khurshid Khan son of respondent No,2 is sub judice before the learned Family Court and a decision thereon is likely to have a direct bearing on the criminal case pending against the petitioner. Therefore, it is argued that in all propriety the proceedings before the learned criminal Court ought to be stayed awaiting the decision of the learned Family Court. In this context he has placed reliance on Muhammad Azam and others v. Muhammad Iqbal (PLD 1984 SC 95) and Javed Iqbal v. The Station House Officer etc. (1995 PCr.LJ 1925). He has further argued that in case both these trials are allowed to continue simultaneously then there would be a danger of conflicting judgments which will obviously be unwholesome. He has also maintained that such an exercise would also attract a question of double jeopardy. He has, thus, prayed that the criminal proceedings pending against the petitioner may be ordered to be stayed during the pendency of the petitioner's suit for jactitation of marriage pending before the learned Family Court. As against that the learned counsel for the State as well as respondent No,2 have argued that the suit filed by the petitioner seeking jactitation of marriage against Khrushid Khan son of respondent No,2 is motivated by sheer mala fides and the same has been filed only to delay the proceedings pending against the petitioner before the learned criminal Court. Relying on Shaikh Nazir Ahmed v. The State (PLD 1986 SC 132) they have maintained that if the jurisdiction of a Family Court is invoked by a party facing a criminal trial only to delay the proceedings of the Criminal Court then in such a case the criminal Court is not barred from continuing with the trial of the Criminal Case.
5. After hearing the learned counsel for the parties and going through the record I have noticed that there is no denying the fact that the suit for jactitation of marriage filed by the petitioner before the learned Family Court and the trial of the petitioner before the learned criminal Court essentially revolve around the same issue i,e, the alleged marriage of the petitioner with Khrushid Khan before her marriage with the abovementioned Muhammad Ramzan. If it is established that the petitioner was already married to Khurshid Khan before she got married to Muhammad Ramzan then she may not be in a position to escape from her criminal liability in that regard but if it is ultimately established that she had never contracted marriage with Khursdhid Khan then there did not exist any impediment in her marriage with Muhammad Ramzan. Precisely this issue as to whether she had in fact contracted marriage with Khurshid Khan, is sub judice before the learned Family Court in the petitioner's suit for jactitation of marriage, Therefore, any decision given by the Family Court in that regard will have a direct bearing on the fate of the criminal trial. In the case of Muhammad Azam and others v. Muhammad Iqbal (PLD 1984 SC 95) it had been laid down by the Shariat Appellate Bench of the Hon'ble Supreme Court that:- "Unless there is pressing unavoidable need to proceed with the criminal trial (as is in the present case to record essential evidence only, regarding which there might be danger of it being lost) the Criminal Court should stay the proceedings and await the result of the contest in issue of Nikah before the Family Court, if the suit is alreadypending or is filed during the criminal trial proceedings." and "That in case it is just and proper and the Sessions Judge or Additional Sessions Judge is empowered to try both the matters under both systems of laws, the trial by the same Court would not be illegal provided the case under the Family Law is decided in the first instance."
' As regards the issue of mala fide filing of the suit for jactitation of marriage before the Family Court in order to delay the proceedings of the trial Court I posed a question to the learned counsel for the State as well as the learned counsel for the complainant as to whether a criminal Court faced with such a -situation is to hold a trial within trial so as to determine whether a suit filed by a party before a Family Court was mala fide or not before deciding to proceed with the Criminal case. Unfortunately both the learned counsel failed to furnish any answer to the same.
7. Be that as it may, the fact remains that if the same crucial issue is pending before two different Courts then there is an inherent danger of conflicting judgments. It is probably to avoid such a situation that it has ordinarily been felt expedient to stay the proceedings of the criminal Court in such matters so as to await the decision of the learned Family Court seized of the issue.
8. Respectfully following the dictum laid down by the Hon'ble Supreme Court in the case of Muhammad Azam (supra) I am inclined to stay the proceedings of the learned criminal Court till the decision of the learned Family Court in this case.
9. For what has been observed above this petition is hereby accepted and the proceedings pending before the learned Additional Session Judge, Khushab in case F.I.R. No,146 registered on 19- 11-1996 at Police Station Noorpur, District Khushab for an offence under section, 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 109, P.P.C. Are hereby stayed till the final decision of the learned Judge Family Court, Jauharabad, District Khushab in the suit for jactitation of marriage filed by the present petitioner.