1997 P Cr (PLP)

Date of hearing: 16th November, 1996. Complainant Haq Nawaz submitted an application in Police Station Civil Lines, Karachi (South) on 9-6-1987 at 11-35 hours wherein he disclosed that his marriage with accused Mst. Hamida had taken place in Multan in 1976 and since the last 10/11 years he was residing with the accused in House No. 10 in Hijrat Colony but they had no issue; that on 18-5-1987 accused Muhammad Aslam, who was his relative, abducted his wife accused Mst. Hamida and they were both living in adultery in Pal Colony Old Gullnar that he had heard that accused Muhammad Aslam had forged a divorce deed and has then married accused Mst. Hamida. This application was incorporated in F.I.R. No.90 of 1987 of the said police station on aforesaid date.

2. Accused Muhammad Aslam was arrested on 9-6-1987 and after investigation the case against accused Muhammad Aslam was cancelled under section 169, Cr.P.C. by an order of Magistrate on 14-6-1987. However, he was again arrested on 23-12-1987. In the meanwhile Mst. Hamida was also made an accused and both of them were sent up for trial before IInd Additional Sessions Judge, Karachi (South) who charged both of them under section 494, P.P.C. and under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which both of them pleaded not guilty and claimed trial.

3. The State produced 9 witnesses in proof of the prosecution case whereas both the accused made depositions under section 342, Cr.P.C. They also made depositions on oath and produced 4 defence witnesses. After the conclusion of the trial the learned Additional Sessions Judge convicted both the accused under section 10(2) of the Hudood Ordinance and sentenced each of them to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.500 or in default to further undergo rigorous imprisonment for one month. Both the convicts have challenged their conviction and sentenced by the appeal in hand.

4. I have heard learned counsel for the parties at length who also led me through the entire record of the case.

5. The case of complainant Haq Nawaz was that appellant Mst. Hamida was still his wife when she allegedly abducted by her co-accused appellant Muhammad Aslam and they had both forged Nikahnama and were living in adultery. Whereas the case of both the appellants was that Mst. Hamida has been divorced by Haq Nawaz by a divorce deed executed on 9-2-1989 and thereafter she had contracted second marriage with her co-accused Muhammad Aslam on 25-3-1987 and that they had not committed any offence. In order to prove their contentions both the -appellants produced D.W.2 Nooruz Zaman who had performed their Nikah on 25-3-1987 and P.W.3 Abdul Razzak and DWA Abdul Majeed were witnesses of that Nikah. The appellants had also produced, Exh.51/B, copy of statement of Mr. Maula Bux K. Memon, retired A.C.M., Karachi which he had admitted before the High Court of Sindh on 2-2-1988 wherein he had testified that on 15-2-1988 Haq Nawaz had appeared before him and had admitted the execution of Talaqnama dated 9-2-1986 and he had attested his signature thereon. During the first inquiry the report of the police was also to the effect that no offence has been committed by appellant Muhammad Aslant and thereafter the case was cancelled against him.

6. It transpires that the learned Additional Sessions Judge convicted both the appellants only on the ground that the signature of Haq Nawaz on the divorce deed did not tally with his other signature. However, this exercise was beside the point when sufficient independent and uninterested evidence had been brought on the record to show that Mst. Hamida had already been divorced by her first husband Haq Nawaz when she solemnized her second marriage with her co-accused appellant Muhammad Aslam, especially when her first husband had himself admitted before a Magistrate the execution of the divorce deed. It is at pity that the said, marriage of the appellants was declared invalid by the learned trial Judge in spite of all the aforesaid evidence and the couple living a validly and legally married life were declared to be living in adultery.

7. Both the appellants had not committed any offence for which they were convicted and sentenced. Consequently the appeal of both appellants Muhammad Aslam son of Haji Gaman and Mst. Hamida his wife is accepted. The conviction and sentence of both the appellants are set aside and they are acquitted of the offence for which they were convicted and sentenced by the IInd Additional Sessions Judge, Karachi (South) on 19-5-1996. They are present on bail. Their bail bonds stand discharged. N.H.Q./1086/FSC Appeal accepted.