P L D 1984 Federal Shariat Court 1 (PLP)

AFTAB HUSSAIN, C. J.-Riaz Hussain, who is son of Maqbool Bibi, prosecutrix's father's maternal-aunt, was sentenced by Mr. Nafees Ahmad Bajwa, Sessions Judge, Jhang, by his order dated 28-6-1983 under section 10(3) of the Offence of Zina (Enforcement :of Hudood) Ordinance, 1979 and sentenced to 15 years' R. 1. and 30 stripes. 'the father of Riaz Hussain, namely, Liaqat Ali and his paternal-grandmother, namely, Hakim Bibi, who were also prosecuted, were acquitted.

2. The prosecution case is evident from the statement of Mst. Shamim Akhtar P. W. 1 that on the 10th April, 1982, in the morning time, she went to ease herself with Mst. Hakim Bibi (acquitted accused) who was staying at her house since a day earlier. She found Liaqat Ali (Acquitted accused) and Riaz Hussain appellant who abducted her by force. Riaz Hussain took her to his house and confined her in a room under threat to her life, for which reason she made no resistance. He also committed Zina-bil-Jabr with her. Later Muhammad Afzal Shah P. W. 2, Sharif Hussain P. W: 3 and Altaf Hussain P. W. 4 approached the accused party and she was entrusted to them on the promise that the matter would not be reported to the Police.

3. After her release, the prosecutrix lodged the first information report on the 13th April, 1982 at 6-15 p.m. in Police Station Kotwali, Jang, on the basis of which the. above-named three persons were tried by the Sessions Judge under section 11 and also for commission or abetment of the offence under section 10(3).

4. It was admitted by Mst. Shamim Akhtar P. W. 1 that she was married to Riaz Hussain appellant, but according to her, she had not gone to d his house, because the rukhsati had not been performed. It was put to her that she had been divorced after the registration of the above case, but she stated that the divorce had been effected prior to the abduction. It is further worthy of note that no reference to the Nikah or divorce was ever made either in the first information report or in the examination-in-chief.

5. The defence case is that the divorce was effected after the registration of the case which clearly was launched to obtain divorce.

6. Muhammad Afzal Shah P. W. 2 paternal uncle of Mst. Shamim Akhtar, Sharif Hussain P. W. 3, her maternal uncle, and Altaf Hussain P. W. 4 another paternal uncle who are said to have gone to the house of Riaz Hussain to fetch Mst. Shamim Akhtar P. W. 1, did not support the prosecution case. Obviously it appears that the case was compromised on- account of subsequent pronoun cement of 'divorce. This fact appears to be clear from the concession made by Muhammad Afzal Shah P. W. 2 that the divorce had taken places after the registration of the case. This supports the defence version.

7. Mst. Shamim Akhtar was medically examined on the 14th April, 1982, by lady doctor Ismat Begum P. W.

7. It appears from her statement that the sexual intercourse by the appellant with Shamim Akhtar was a recent affair, and she was not accustomed to it. She also found bruises on the breasts, thighs and chest. From this evidence the learned Sessions Judge drew a conclusion that this was a case of Zina-bil-Jabr, although if the divorce was not complete and was not even effected before the sexual act; it would be neither Zina nor Zina-bil-Jabr. He was misled by the medical report and had not considered that these bruises may have been effected due to brut handling of one's wife, by the husband because it was nowhere the prosecution case that the prosecutrix had put up any resistance. On the other hand, the theory of resistance is excluded in other matters by the admission of the prosecutrix herself.

8. The moot question in this case was whether Mst. Shamim Akhtar had been divorced before the commission of the sexual intercourse with her. We do not understand why the learned Court below has failed to take note of the provisions of the Family Laws Ordinance, section 7 of which lays down a procedure for completion of the divorce. It has been laid down by this Court as well as by the Supreme Court of Pakistan that no divorce can be complete without following that procedure. In these circumstances, the finding about divorce is hardly a legal finding. If the proceedings under section 7 of the Family Laws Ordinance are not taken; obviously, the relationship of husband and wife still subsists between Mst. Shamim Akhtar and Riaz Hussain.

9. Even factually, it is not possible to say with any amount of certainty, that any divorce was pronounced before the commission of the alleged offence. As stated above the facts of the case show that the pronouncement must have been made after the registration of the case, which satisfied the complainant party, and for this reason very close relatives of the prosecutrix, both from the father's side and mother's side, did not support the prosecution case. This is further corroborated by the concession made by Muhammad Afzal Shah P.W.2 that the divorce, took place after the registration of the case.

10. The learned Sessions Judge has made some observations about the line of cross-examination adopted by the learned counsel for the appellant and drew an inference that it corroborated the story of commission of the offence. We are not aware of any such law where the line of cross-examina tion as such can prove the guilt of any person. The learned counsel put different questions from different angles of their own and if it is not clear that all those questions had been put under proper and specific instructions of the accused-party, it is not possible to draw any inference against the accused from, merely the line of cross-examination. The appellant did not commit the; offence of Zina-bil-Jabr. His appeal is accepted, and his conviction anti sentences are set aside. He shall be released forthwith if not required in an other case.

11. Copies of this judgment shall be sent to the learned Sessions Judge, as well as to the Chief Justice of the Lahore High Court. M.Z.M. Appeal accepted.