' This revision petition under Article 203(DD) of the Constitution of Islamic Republic of Pakistan is directed against the order, dated 19-5-2003 passed by the Additional Sessions Judge, Lahore, whereby the application under section 265-K, Cr.P.C. Filed by the respondents was accepted and they were acquitted.
2. Relevant facts are that the learned trial Judge, after entertaining the complaint under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, filed by the petitioner proceeded to record preliminary evidence. Thereafter, he passed an order on 22-2-2003 summoning the respondents as accused, so as to face the trial. On 18-4-2003 an application under section 265-K, Cr.P.C. Was moved by the respondents before the learned trial Court seeking their acquittal in the case. This application was allowed, as mentioned above.
3. It is urged by the learned counsel for the petitioner that the learned trial Judge having summoned the respondents to face the trial as accused under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 (hereinafter called "The Ordinance") could not without recording evidence accept their application for acquittal under section 265-K of Code of Criminal Procedure. According to the learned counsel the impugned order has resulted in grave miscarriage of justice.
' On the other hand, learned counsel for the respondents supported the impugned order, as according to 'him there was no chance/scope of conviction of the respondents even if trial was held, as the charge, on the face of it, was groundless.
4. It is necessary to briefly refer to the protracted civil litigation, preceding the present complaint, which was dismissed through the impugned order.
' According to the complainant, his brother, Muhammad Sarwar son of Noor Muhammad (since dead), was allegedly married with Mst. Shagufta Ahmad respondent on 9-4-1997 (as per para.1 of the complaint). Two counter-suits were filed by the parties, to this alleged marriage; (i) Suit by Mst.
Shagufta Ahmad for jactitation of marriage and (ii) Suit for restitution of conjugal rights by Muhammad Sarwar son of Bashir Ahmad. Mr. Sultan Ahmad, Civil Judge/Judge, Family Court, vide judgment, dated 2-1-1994 decreed the suit of Muhammad Sarwar son of Bashir Ahmad for restitution of conjugal rights while the suit of respondent lady was dismissed.
5. On appeal the matters were remanded by the Appellate Court. In post-remand proceedings, Rana Riaz Ahmad Khan, Judge, Family Court, vide judgment, dated 22-2-1995 decreed the jactitation of marriage suit and dismissed the suit for restitution of conjugal rights.
' Again, appeals were filed, this time by Muhammad Sarwar son of Bashir Ahmad, which were accepted and the cases were re-remanded vide judgment dated 28-9-1996.
6. On 5-4-1997, Malik Riaz Ahmad Khokhar, Judge, Family Court, again decreed the suit for jactitation of marriage filed by the respondent lady and dismissed the counter-suit for restitution of conjugal rights. Appeals filed by Muhammad Sarwar son of Bashir Ahrnad failed on 6-1-2000 before Mr. Ijaz Ahmad Chaddar, Additional District Judge. His writ petition (Writ Petition No,4074 of 2000) was rejected in limine by High Court on 11-4-2000. This order has attained finality.
7. It is common ground between the parties that Mst. Shagufta Ahmad was married with Muhammad Sarwar son of Bashir Ahmad on 10-9-1987. (Significantly he was not arrayed as accused in the complaint by Muhammad Anwar complainant).
8. Perusal of the complaint (para.5 ground "b") shows that grievance voiced by the complainant was that since the litigation on civil side was still not finalized (after the judgment, dated 5-4-1997 by Malik Riaz Ahmad Khokhar, Judge, Family Court) and it attained finality only when Mr. Ijaz Ahmad Chaddar, Additional District Judge dismissed appeals against said judgment, dated 5-4- 1997, therefore, Mst. Shagufta Ahmad was not free/competent to contract marriage with Muhammad Sarwar son of Bashir Ahmad way, back on 10-9-1987 and her cohabitation with him, in the purported capacity of his wife amounted to Zina, rendering her and the co-accused liable to be punished under "the Ordinance".
9. The question that arises for consideration, in the light of the litigation and judgments rendered by different Courts is as to whether respondent Mst. Shagufta Ahmad committed, prima facie, any offence, for which, she alongwith other co-accused, should have been tried and the prosecution allowed to lead evidence, before she could ask for acquittal or the learned trial Judge could competently, acquit them, without taking further proceedings.
10. Section 265-K of Cr.P.C. Reads thus:-- "265-K. Power of Court to acquit accused at any stage.--- Nothing in this Chapter'shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence."
' A plain reading of the above provision of law shows that there is no embargo placed on the powers of the trial Court to acquit the accused at any stage, which would be necessary intendment of the Legislature, mean even on the first date of hearing when the accused enters appearance, subject of course, to the condition that the trial Judge was satisfied, on the basis of material placed before him, that the charge was groundless or that there was no possibility of ultimate conviction of the accused. See Muhammad Tufail v. Muhammad Suleman PLD 1995 Lah.
293, wherein it has been laid down that order of summoning of accused under section 204, Criminal Procedure Code was of tentative nature, liable to be recalled in suitable/proper case at any stage, and it could not be equated with judgment which was immune from review vide section 369 of Criminal Procedure Code. In Yasin Khan Babar v. The State 1995 PCr.LJ 1426 the legal impact of section 265-K, Cr.P.C. Was considered thus:-- "The above provisions would show that the Court can acquit an accused at any stage of the trial if it consider that there is no probability of accused being convicted of any offence. It may further be observed that this point was also discussed in the case of Muhammad Haroon v. The State 1993 PCr.LJ 524 by .a learned Single Judge of this Court. It was held that the use of words 'at any stage' of the case clearly indicates that such power can be exercised even before the charge is framed and also without complainant being heard at all."
' To the same effect is the view expressed in Muhammad Tahir v. The State 1991 PCr.LJ 644.
11. Keeping in view the above principle of law, it is to seen as to whether the impugned order is liable to be interfered with by this Court in exercise of its revisional jurisdiction.
' As noticed above, the stance of Mst. Shagufta Ahrnad respondent, from day one, was that she was never married with. Muhammad Sarwar, brother of the complainant and since he unjustifiably claimed her to be his wife, therefore, she was forced to file suit for jactitation of marriage. This suit was lastly decreed by Malik Riaz Ahmad Khokhar, Judge, Family Court, on 5-4-1997. On the showing of the complainant himself, she had contracted marriage with Muhammad Sarwar son of Bashir Ahrnad on 10-9-1987. This was long time before the alleged marriage of the lady with brother of the complainant. Be that as it may, the question about non-existence of marriage between complainant's brother and respondent lady stood finally resolved in her favor by the Appellate judgment, dated 6-1-2000, as upheld by High Court in writ petition decided on 11-4-2000.
12. There is marked difference between suit for dissolution of marriage and suit for jactitation of marriage; whereas in the former suit existence of valid marriage is admitted by the wife and decree is sought by her for its annulment/dissolution from the Qazi/Judge, Family Court on one or more grounds, enumerated in the law i,e, Dissolution of Muslim Marriage Act, 1939, while in the latter case the Qazi is petitioned to declare that at no point of time marriage took place, thereby putting a permanent restraint on the opponent from claiming the lady to be his lawfully wedded wife.
13. In the instant case decree for jactitation of marriage having been obtained by respondent lady it would be deemed, as per law, that, ab initio, she was never married to the complainant's brother Muhammad Sarwar and as such her marriage with Muhammad Sarwar son of Bashir Ahmad was not open to any legal exception. There is no law which could restrain her from entering into marriage till the final outcome of the litigation which, significantly, commenced long after marriage with said Muhammad Sarwar (son of I3ashir Ahmad). I pointedly asked learned counsel for the petitioner, as to whether on 10-9-1987, i,e, date of marriage of the lady with Muhammad Sarwar son of Bashir Ahmad, there was any restraint order by any Court of competent jurisdiction holding the field. His answer was in the negative.
14. In this view of the matter, the charge against the respondents was wholly groundless there being no possibility of their conviction, even if full-fledged trial was allowed to be held. Learned trial Judge, therefore, did not commit any illegality in acquitting the respondents at the initial stage of the case, keeping in view the dictum of Muhammad Tufail's case (supra).
' Further proceedings in this complaint case would have been mere exercise in futility, causing uncalled for agony and torture for the respondents, besides wastage of public time and money.
15. There being no force in this revision petition, same is dismissed.
Revision . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.