1989 P Cr (PLP)

FAKHRUDDIN H. SHEIKH, J.‑‑ This is an appeal from the judgment of Additional Sessions Judge, Dera Ghazi Khan, dated 3‑8‑1987, whereby the appellant was convicted under sections 16 and 103) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance).

2. The allegation against the appellant was that on or about 9‑9‑1985 at 10 00 p.m. he. alongwith Ata Muhammad, Ghulam Farid son of Ghulam Rasool and Azam hart. abducted Mst. lqbal Mai and that later on she was subjected to Zina by appellant Ghulam Farid. The father of the alleged abductee namely Sonhara had lodged report of this incident at Police Station Vehoa Tehsil Taunsa Sharif, District D.G. Khan on 1‑10‑1985: On 2‑10‑1985 the alleged abductee was produced before the police and on 6‑10‑1985 the appellant was also arrested. Mst. Iqbal was produced before Magistrate for statement under section 164, Cr.P.C. and was also sent for medical examination.

3. It appears from the prosecution evidence that Sonhara was married with sister o; Abdul Latif, the husband of the alleged abductee Mst. lqbal, who was given in marriage by way of exchange to Abdul Latif. It was suggested to the prosecution witnesses namely P.W.1 Sonhara and P.W.2 Mst. lqbal that the latter was divorced by Abdul Latif by way of consideration of divorce pronounced by Sonhara to the sister of Abdul Latif. In his evidence Sonhara has admitted that he had divorced he Abdul Latif, but he denied that Abdul Latif had divorced P.W.2 Mst. Iqbal.

4. It further appears from the statement of the appellant under section 342, Cr.P.C. and the statements of the defence witnesses that Punchait was held in which a document was executed which is Exh.D.E: on the record. According to this Punchaitnama the alleged victim Mst. lqbal was declared to have been divorced by Abdul Latif.

5. The most conspicuous aspect of the case is that Abdul Latif, the husband of victim Mst. Iqbal, was neither examined nor any effort was made either by the prosecution or by the defence to produce him before the Court. We have gone through the evidence. Even to the Investigating Officer P.W.4 Liaqat Ali, no question has been asked whether he tried to procure the attendance of Abdul Latif before the Court to prove the alleged Talaqnama, which has been produced by the defence as Exh.D.E. It is surprising that the trial Court called the father of this Abdul Latif namely Ghulam Qasim and examined him as Court‑witness on the point of divorce, but failed to call Abdul Latif.

6. It further transpires from the appeal and the document produced alongwith it that a suit for restitution of conjugal rights has been filed by appellant Ghulam Farid against P.W.2 Mst. Iqbal. In view of the principle laid down by the Supreme Court in the case of Muhammad Azam v. Muhammad lqbal and. others P L D 1984 SC 95, it was duty of the trial Court to have examined all the necessary witnesses in order to decide the point in issue in the case. The most important question in this case was whether Mst. lqbal had been divorced by her husband Abdul Latif. This point could have been decided only after examination of Abdul Latif, who is alleged to have put his thumb‑impression on the Talaqnama (Exh.D.E.).

7. We consequently set aside the conviction and sentences and remand the case to the trial Court with the direction that Abdul Latif should be examined as a Court‑witness and thereafter decide the question of divorce. The trial Court shall also ascertain whether the suit for restitution of conjugal rights said to have been filed by appellant Ghulam Farid is still pending. If so the trial Court shall await the decision of the Family Court before deciding the question of divorce. We also hope that the, Family Court shall expeditiously decide the suit for restitution of conjugal rights if still pending before it.

8. The appellant is in custody. We, direct that he shall continue to be in custody, but the trial Court shall be at liberty to exercise its discretion under section 497, Cr.P.C. on merit if moved in this behalf. The appeal stands disposed of accordingly. SA./455/FSC Case remanded.