P L D 1988 Supreme Court 186 (PLP)

NASIM HASAN SHAH, J.‑‑This appeal, by leave of this Court, is directed against the order of the Federal Shariat Court dated 24‑6‑1984, whereby the conviction and sentence imposed upon the appellants was upheld and their appeal dismissed. The learned trial Court had convicted both the appellants under Section 494, P P C and Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced them for the first offence to two years' .rigorous imprisonment and Rs.1,000 as fine (in default one month R.I) and for the second offence to five years' rigorous imprisonment, 10 stripes and Rs.1,000 as fine (in default one month's R.I). Both the sentences were ordered to run concurrently. Mst. Bashiran (appellant No. l herein) was married to Muhammad Hussain (P.W.1) on 10‑6‑1961. Muhammad Hussain was already married when he contracted the marriage with Mst. Bashiran and their marital relations remained extremely strained with the result that quite soon after the marriage Mst. Bashiran returned to the house of her parents and lived with, them for several years. Here she also fell seriously ill and her kidneys had to be operated upon but Muhammad Hussain showed no concern for her, during all this period. According to the appellants, Muhammad Hussain visited the house of Mst. Bashiran .on 6‑2‑1979 and was prevailed upon to dissolve the marriage and allegedly pronounce an oral divorce. He then went to the City Courts alongwith Muhammad Yusuf, Abbas Ali (D.W.2) and Muhammad Ishaq (D .W .3) where he executed a written talaqnama (Ex.D.10) and handed it over to the D.Ws. after the same had been duly attested by a Notary Public Mr. M.I. Merchant, Bar‑at‑Law. The talaqnama was then handed over to Mst. Bashiran by these witnesses. It was only thereafter that on 24‑3‑1980, she contracted a second marriage with Abdur Rehman (appellant No.2 herein). However, Muhammad Hussain complainant on coming to know of this development reported the matter to the police but they refused to take any action in view of the talaqnama (Ex.D.10). He thereupon filed a private complaint on 22‑5‑1980 which has resulted in the conviction of the appellants. The Court below have found that Muhammad Hussain had not divorced Mst. Bashiran and the alleged talaqnama dated 6‑2‑1979 (Ex. D .10) did not bear his signature and hence the earlier marriage between him and Mst. Bashiran subsisted and the marriage contracted by Mst. Bashiran with Abdur Rehman was not Valid. Accordingly, the appellants were found guilty of the offences noted above. We have heard Mr. Zafar Mahmood, learned counsel for the appellants and Mr. Ghulam Ahmad for the State. In our view even if the finding of fact that the talaqnama (Ex.D.10) was a forged document is accepted as correct and that Mst. Bashiran is found to have contracted the second marriage with Abdur Rehman while she was still the wedded wife of Muhammad Hussain; the question would still remain as to whether the appellant can be found guilty of committing "zina", in all the circumstances of the case. Zina is defined in Section 4 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as follows:‑ "Zina. A man and a woman are said to commit 'zina' if they wi~u‑lly have sexual intercourse without being validly married to each other." Mr. Zafar Mahmood, learned counsel for the appellants, has argued that in the circumstances of the case, the appellants could not be said to have wilfully had sexual intercourse without being validly married to each other. It is submitted that the appellant No.l is an illiterate lady. The evidence of Abbas Ali, D.W.2 and Muhammad Ishaq,. D.W.3, show that they had gone with Muhammad Hussain to the City Courts and a written divorce deed was executed by Muhammad Hussain, which is duly witnessed by Abbas Ali D.W. and attested by the Notary Public and the said talaqnama thereafter was handed over to Mst. Bashiran. In these circumstances, she believed bona fide that Muhammad Hussain had divorced her and had entered into a second marriage with Abdur Rehman only thereafter. If they were having sexual intercourse thereafter (which too was only a presumption), this would not be "zina", within the meaning of section 4 of the Ordinance, because, they genuinely believed that the earlier marriage stood dissolved and they were validly married to each other. The decision on this case. therefore, turns on the correct interpretation of the word "wilfully" in section 4 of the Ordinance:‑ "An act or omission is 'wilfully' done, if done voluntarily and intentionally and with the specific intent to do something the A law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law." (Black's Law Dictionary Fifth Edition, Page 1434). Thus, an act is done "wilfully" if it is done intentionally or deliberately to disobey or disregard a law but if it is not done with an evilll purpose or criminal intent but inadvertently it will not have been done wilfully. In Ashfaq Ahmad and another v. The State (P L D 1985 Federal Shariat Court 126) this term has been discussed at some length and the various meanings of this word noted. The following passage appearing in that judgment is relevant:‑ "The terms ('wilful' and 'wilfully') imply a conscious act of the mind and denote the attitude of the mind and will, but they import something more than a mere exercise of the will and include the idea of consciousness or knowledge, that is, knowledge of all the circumstances; and, when used in connection with an act forbidden by law, the terms carry the idea that, with knowledge, the will consented to, designed and directed the act." The conclusion of the Federal Shariat Court after relying on an earlier decision of its Court was:‑ "Even this Court in Muhammad Siddique v. State (P L D 1983 F S C 173) interpreted the word 'wilfully' used in section 4 of Ordinance VII of 1979 to mean that there must be mens rea or guilty mind or guilty intention on the part of the accused, to convict him for the offence." We are inclined to agree with this interpretation of the term "wilfully" used in Section

4. Now coming to the facts of this case, we find that Abbas Ali, D . W . deposed, and this part of his statement remained unchallenged in cross‑examination is as follows:‑ "On 6‑2‑1979 complainant came to the house of parents of accused Mst. Bashiran and divorced her. Muhammad Yousuf, Muhammad Ishaque, Haji Ghulam Muhammad and myself were present at that time. I, Muhammad Ishaque and Muhammad Yousuf accompanied the complainant to City Court for execution of written talaqnama. Complainant signed talaqnama. I and Muhammad Yousuf also signed. I see talaqnama Ex.10. It bears my signatures, the signature of complainant and of two witnesses. We returned from City Court to Korangi and talaqnama was handed over to accused Mst. Bashiran. In 1980, accused Mst. Bashiran was married " Thus, Mst. Bashiran had taken no part in fabricating the talaqnama and she believed bona fide that it was a genuine document and that there was no impediment in her contracting a second marriage. Indeed, after having carefully considered all aspects of the case we have come to the conclusion that the appellants had entered into a marriage believing that they could validly do so and even if they ha-.e been having sexual intercourse (which is only a presumption as there is no offspring of this marriage) they cannot be held guilty of the offence of "zing", as defined in section 4 of the Ordinance. The result is that this appeal is allowed. The conviction and sentence passed on the appellants is set aside and the appellants shall be released forthwith, if not required in any other case. M.B.A./B-34/S Appeal accepted.