1994 PLP 2098 (SCMR)

Date of hearing: 8th June, 1994. MAULANA MUHAMMAD TAQI USMANI (MEMBER).‑‑ .The appellants Mst. Zahida Shaheen and Aqeel‑ur‑Rehman were convicted by the Additional Sessions Judge, Rajanpur on 20‑11‑1990 under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). They were sentenced to undergo rigorous imprisonment for five years, thirty stripes and a fine of Rs.15,000 each or one year more in case of default in the payment of fine.

2. They filed an appeal before the Federal Shariat Court where their conviction was maintained. However, sentence of imprisonment awarded to Mst. Zahida Shaheen (appellant No. l) was reduced to a period already undergone while the punishment of Aqeel‑ur‑Rehman (appellant No.2) was reduced to two years' R.I. The sentence of fine imposed on Aqeel‑ur‑Rehman (appellant No.2) was reduced from Rs.15,000 to Rs.5,000 or six months' R.I. in default of payment of fine. The sentence of stripes to both the appellants was maintained.

3. Mst. Zahida Shaheen is the niece of Mst. Razia (P.W.4) the previous wife of Aqeel‑ur‑Rehman. The allegation against the appellants is that they have contracted an illegal marriage and committed illegal intercourse with each other because their marriage was effected during the subsistence of marriage of Aqeel -ur‑Rehman with Mst. Razia (P.W.4) who is the aunt of Mst. Zahida Shaheen. Since it is not allowed in Shariah that a person combines an aunt and her neice in his marriage, the marriage taken place between the appellants inter se was of no legal effect and their cohabitation with each other amounted to Zina.

4. The plea of the appellants was that Aqeel‑ur‑Rehman had divorced Mst. Razia (P.W.4) and has contracted marriage with Mst. Zahida Shaheen after the expiry of the period of Iddat. Therefore, the marriage was valid and their living together does not amount to Zina.

5. It is admitted by the prosecution that Aqeel‑ur‑Rehman has divorced Mst. Razia but the case of the prosecution is that the divorce was given by him on 5‑7‑1987 while the Nikah with Mst. Zahida Shaheen took place on 21‑2‑1987 i.e., about 4 1/2 months prior to the divorce. On the other hand the version given by the appellants is that the divorce was given by Aqeel‑ur- Rehman on 22‑10‑1986‑ i.e., nearly four months earlier than his Nikah with Mst. Zahida Shaheen. The appellants have substantiated their plea by a Talaqnama (Exh.D/I) attested by Syed Mulazim Hussain and Syed Khalid Mehmood. They have also examined Khalid Mehmood, the marginal witness of the divorce deed, who has deposed as D.W.1 that the Talaqnama (Exh.D/1) was ascribed by Aqeel‑ur‑Rehman and he alongwith Mulazim Hussain brought it to the house of Mst. Razia who refused to receive it but they had informed her orally that Aqeel‑ur‑Rehman had divorced her.

6. The basic question which needs determination in this case is whether Aqeel‑ur‑Rehmand had divorced Mst. Razia before his marriage with Mst. Zahida Shaheen. The learned Federal Shariat Court has disbelieved the Talaqnama (Exh.D/1) on the ground that the Taiaqnama (Exh.P.E.) which has been executed on 5‑7‑1987 and was sent to the Chairman Union Council as a notice of Talaq does not refer to any earlier Talaqnama. Had Aqeel‑ur‑Rehman divorced Mst. Razia on 22‑10‑1986 as purported in Talaqnama (Exh.D/1), his notice to the Chairman Union Council or Talaqnama attached therewith should have a reference to the effect that he had divorced Mst. Razia on 22‑10‑1986. Instead the Talaqnama (Exh.P.E.) has no reference to an earlier Talaqnama at all and it is mentioned therein that he has divorced list. Razia on the date of the execution of that deed i.e., 5‑7‑1987.

7. The learned counsel for the appellants (Mr. Muhammad Ismail Qureshy, Advocate) contended that the reason given by the Federal Shariat Court for discarding the Talaqnama (Exh.D/1) is not sufficient to disbelieve its contents especially when they are fully proved by the evidence of Khalid Mehmood (D.W.1) because lack of any reference :n the notice of Talaqnama to the earlier Talaqnama may be based on some wrong advice. The people are not generally aware of the provisions of section 7 of the Muslim Family Laws Ordinance and do not feel it necessary to send a notice of Talaq to the Chairman, Union Council. So did Aqeel‑ur‑Rehman. But when he came to know that a notice of Talaq is a necessary requirement of law, he sent the notice and was wrongly advised to attach a fresh Talaqnama with the notice and not the Talaqnama Exh.D/1 because it was dated 22‑10‑1986 and he feared that his failure to give a notice of Talaq to the Chairman in the period between 22‑10‑1986 to 5‑7‑1987 would carry some kind of legal proceedings against him. The learned counsel further contended that even if it is admitted that Aqeel‑ur‑Rehman had not divorced Mst. Razia before his marriage with. Mst. Zahida Shaheen, it may be .due to the fact that the common people do not generally know the Injunction of Shariah against combining an aunt and a niece in marriage and in the absence of such knowledge, the criminal intention which is a necessary, ingredient of an offence, was lacking and he should not be punished on this score. In this respect he referred to the well known Hadith of the Holy Prophet (p.b.u.h.)." (All the acts depend on the intentions). The learned counsel argued that since the criminal intention was not there, therefore, the appellants should not have been liable for the punishment of Zina.

8. He also contended that the marriage with a niece during the subsistence of ones marriage with her aunt is at the most an irregular marriage and not a void marriage because 'marriage' is defined in section 2(c) of the Ordinance in the following words:‑‑ "' marriage' means marriage which is not void according to the personal law of the parties and , 'married' shall be construed accordingly."

9. We do not agree with the learned counsel that the ignorance of the law can be an excuse for the appellants. The Hadith quoted by the learned counsel does not mean that a sinful act may be committed with a good intention. The Hadith refers to the virtuous deeds only and indicates that the virtuous deeds can only bring the reward in the Hereafter if they are done with a good intention to please Allah and His messenger. That is why the proposition laid down by the Hadith is followed by an example that the Hijrah (migration for the cause of Islam) is rewardable only if it is done in order to please Allah and his messenger but if somebody has migrated for the sake of marrying a girl or to achieve any other benefit he cannot be awarded the Thawab of migration. Obviously the Hadith does not mean that if a person commits theft or robbery or any other offence with a good intention or without knowing it to be an offence can be set at liberty merely because he did not know the provision of law.

10. Similarly, it is true that a marriage with the niece of one's wife is held by some jurists as Fasid (irregular) and not Batil (void) but to word Zina' as to defined in the Ordinance covers both void and irregular marriages. 'Zinc' is defined in section 4 of the Ordinance in the following words:‑' "A man and a woman are said to commit ' Zina' if they wilfully have sexual intercourse without being validly married to each other." Here, the word "married" has been qualified by the word "validly", meaning thereby that any marriage which has been effected in an invalid manner cannot exclude a sexual intercourse from the definition of ' Zina. A valid marriage is 'a marriage which is effected abiding by all the Injunctions of Islam regarding Nikah. Therefore, an irregular marriage also falls in the definition of an invalid marriage for the purposes of section 4 of the Ordinance. It is noteworthy that while defining the Zina liable to Hadd in section 7 of the Ordinance, the word "validly" has not been used to qualify the word "married" which means that only a void marriage can fall within the definition of ' Zina liable to Hadd' and not an irregular marriage. On the contrary, an irregular marriage can fall within the definition of "Zina liable to 'Tazir". '

11. Therefore, the basic question in this case is that of the genuineness of the Talaqnama Exh.D/1. After hearing the learned counsel and perusing the record, we find that the evidence led by the appellants to prove the Talaqnama Exh. D/ 1 was at least sufficient for creating a doubt in the case of the prosecution. It is generally found that the people do not send a notice of Talaq to the Chairman as required under the Muslim Family Laws Ordinance, 1961, and we have held in the case of Allah Ditta v. Mukhtar (1992 SCMR 1276) that the failure to send a notice to the Chairman does not render the divorce ineffective in Shariah. Therefore, if the appellants have proceeded on the assumption that the Talaq given to Mst. Razia on 22‑10‑1986 was effective in Shariah, they have committed no offence. Therefore, the impugned judgment is liable to be set aside and the appellants deserve acquittal. They are, therefore, acquitted of the charge levelled against them.

12. These are the reasons for our short order dated 8‑6‑1994 whereby the appeal filed by the appellants was allowed and it was ordered that they be released forthwith if not required in any other case, M.B.A./Z‑177/S Appeal allowed.