1994 P Cr (PLP)

Tariq Shamim for Appellants. Shaikh Muhammad Akhtar, A.A.-G. with Muhammad Rafi Siddiqui ' for the State. Date of hearing: 31st January, 1993. Ghulam Muhammad (26 years), son of Muhammad Khan, caste Sial and Mst. Kaniz Fatima (19 years), daughter of Ghulam Muhammad, caste Dhakoo, residents of Chak No.17 Ghagh, Tehsil Shorkot District Jhang, have preferred this appeal against the judgment of the learned Additional Sessions Judge, Jhang Camp Shorkot, dated the 9th October, 1991. convicting each of the appellants of the commission of offence of Zina and sentencing them to ten years' rigorous imprisonment, thirty stripes of whipping and a fine of Rs.2,000 failure to pay which was to entail sufferance of additional simple imprisonment of six months. According to the prosecution version of the case Ghulam Muhammad had taken away Mst. Kaniz Fatima during the subsistence of marriage of the latter with the complainant, Muhammad Ayub, P.W.8, who otherwise happened to be her cousin. Muhammad Ayub moved through the application, Exh.P.F., dated the 30th April, 1990, the Deputy Inspector General of Police, Faisalabad Range, for proceeding against the appellants and others. In consequence of the registration of case the appellants alongwith others were challaned and prosecuted. The co-accused of the appellants were, however, acquitted by the learned trial Court.

2. The appellants claimed that they were legally-wedded couple. They denied Mst. Kaniz Fatima's marriage with the complainant.

3. From the evidence brought on the record, which has been gone through with the assistance of the learned counsel for the appellants, it transpires that Ghulam Muhammad took away Mst. Kaniz Fatima and married her. A case was registered and in consequence of the pressure and compromise effected between the parties Ghulam Muhammad divorced in writing Mst. Kaniz Fatima on the 7th December, 1989. Mst. Kaniz Fatima was restored to the complainant party. The complainant party did not pursue. the case which was cancelled. However, Ghulam Muhammad again took away Mst. Kaniz Fatima on the 6th April, 1990, and started living and cohabiting with her. He informed the concerned Union Council No.100 of Chak No.17 Ghagh that he had withdrawn the divorce. The Union Council held proceedings on the 31st December, 1989, regarding withdrawal of the divorce.

4. According to the view adopted by this Court the divorce given byl Ghulam Muhammad on the 7th December, 1989, became effective and he" could not withdraw the same. Admittedly Ghulam Muhammad again had not A gone in for marriage with Mst. Kaniz Fatima and no Halala had taken place. Therefore, cohabitation between the appellants after the divorce would amount to commission of Zina. This inference operates against the respondents even if the marriage between the complainant and Mst. Kaniz Fatima, which the complainant tried to prove by adducing evidence, is not taken into consideration. The learned counsel for the appellants contended that the appellants were not aware of the legal consequences of the action of Ghulam Muhammad in non-withdrawing the divorce and were living together after it. The learned counsel prays that in the circumstances the sentence awarded to the appellants be reduced. The learned counsel seems to have a point. While maintaining the conviction of the appellants recorded by the learned trial Court the sentence of Mst. Kaniz Fatima is reduced to the term already suffered by her plus thirty stripes of whipping. After execution of the sentence of thirty stripes of whipping she will be set at liberty forthwith if her detention is not required in connection with any other case. The sentence of rigorous imprisonment of Ghulam Muhammad is reduced from ten years to four year. His sentence of fine and whipping is kept intact. With the aforesaid reduction in the sentence the appeal stands dismissed. N.H.Q./899/FSC???????????????????????????????????????????????????????????????????????????????? Sentence reduced.