P L D 1988 Federal Shariat Court 105 (PLP)

MUFTAKHIRUDDIN, J.‑‑This is an appeal against the order of conviction passed on 10‑11‑1987 by learned Additional Sessions Judge, Faisalabad whereby the appellants namely Aslam Masih alias Afzal Masih son of Barkat Masih and Mst. Zarina alias Jewani daughter of Umar Masih both residents of Dhudhi‑Wala Munir Park Jaranwala Road, Faisalabad have been found guilty of offence punishable under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and each of them sentenced to undergo R.I. for four years with whipping numbering 30 stripes also a fine of Rs.1,000 (one thousand only) or in default of payment of fine to further undergo R.I. for four months.

2. On or about 17‑8‑1983 Dainal Masih son of. Nawab Masih, Christian resident of Chak No.222/RB Nawabanwala Tehail and District Faisalabad lodged a complaint before the Ilaqa Magistrate and alleged that he was married to Mst. Zarina alias Jewani on 8‑4‑1974, And out of this wedlock four children were born, out of them two have died and the two are alive. A girl aged about eight years is living with Mst. Zarina while the son aged about six years is living with the complainant. It was further alleged in the complaint that the accused person had developed illicit relations and are now living as husband and wife and call themselves Muslims and two children are born out of their relations. It was also claimed that he (complainant) had not divorced Mst. Zarina nor she has obtained any decree for the dissolution of marriage. Since according to him the accused are leading their life in adultery, they are liable to be punished under section 5 read with section 10 of the said Ordinance.

3. The complaint was referred to the learned Sessions Judge, Faisalabad and later the same came up before the Additional Sessions Judge, Faisalabad who framed the charge under section 10 of the said Ordinance and on the denial of the charge by the accused the complainant produced one witness besides himself. P.W.1 (Muhammad Iqbal) Vaccinator, Health Branch Municipal Corporation, Faisalabad produced a copy of the birth certificate wherein a male child named Asif Javed is entered and the parentage of the child is mentioned as that of Muhammad Afzal son of Barkat Ali. The complainant himself appeared as P.W.2 and repeated the assertions contained in the complaint. Mst. Zarina in her statement recorded under section 340(2), Cr.P.C. has stated her case in these words:‑ . "I have embraced Islam on 16‑2‑1980 at the hands of Maulana Taj Mahmood deceased. My Islamic name was changed to Mst. Riffat Bibi. After embracing Islam I contracted marriage with Muhammad Aslam my co‑accused. My Nikah was performed by Maulvi Ghulam Farid 'of D‑Type Colony. The Nikah was registered. Thereafter myself and my co‑accused Muhammad Afzal have been residing together as spouses. Three children were born out of our wedlock. Before embracing Islam I had been wedded to Dainal Masih, the complainant. After I embraced Islam and contracted marriage with a Muslim, Dainal Masih P.W. never raised any objection. Two sons and a daughter had born from the wedlock between myself and Dainal Masih. When I embraced Islam the daughter Ghulam was in my custody. She also embraced Islam at the hands of Maulana Taj Mahmood. She is now in her 12th year of age and is studying in the 5th Class. Dainal Masih attempted to snatch the daughter from me whereupon I instituted a suit against him. Dainal Masih appeared in the Court and that case was decided in my favour. I cannot say as to why this complaint has been filed by Dainal Masih against me. I have not committed any zina with my co‑accused as both of us are husband and wife after having been wedded in accordance with Muslim Rites." Aslam Masih alias Afzal in his statement recorded under section 342, Cr.P.C. stated in these words:‑ "After embracing Islam myself and my co‑accused contracted marriage in accordance with Muslim kites. It is incorrect that we have been committing 'zina because we are now husband and wife. The trial Court was of the opinion that the marriage tie between Dainal Masih complainant and Mst. Zarina, accused still subsists and as such the accused are committing zina with each other because their marriage is void in the eye of law. Mst. Zarina was further found guilty of an offence under section 494, P.P.C. because she has married during life time of her husband.

4. The appellants being aggrieved of the order of conviction have now approached this Court and their learned counsel Ch. Khalid Mahmood, Advocate has assailed the order of conviction. Mr. Muhammad Yaqoob. Advocate, appeared for the complainant and Mr. Abdul Moeed, Advocate represented the State. The appellant Mst. Zarina in her statement has deposed that she has changed her religion and the ceremony of conversion to Islam took place before Maulana Taj Mahmood on 16‑2‑1980 who has issued the certificate Exh. D.C. which has been confirmed by Mufti Muhammad Moyuddin. It has been stated on oath that accused Muhammad Aslam had embraced Islam at his hand and he has recited 'Kalma Tayyaba His Islamic name was Muhammad Afzal and at his instruction the Secretary Jamia Quaderia Rizvia issued the 'Sand Qabul‑e‑Islam (ﻪﺑﻳﻄ ﻪﻣﻠﻜ). No cross‑examination was offered. The statement of Mufti Muhammad Moyuddin was corroborated by Maulana Muhammad Afzal Kotlvi, Secretary, Jamia Quadria Mustafaabad, Sargodha Road, Faisalabad. The certificate issued in this behalf by him Exh D.A. was placed on record. The nikahnama (Exh. D.B.) between the appellants has been duly registered. Sahibzada Tariq Mahmood son of Maulana Taj Mahmood has identified the handwriting of his father in whose handwriting certificate Exh. D.C. has been issued. It would thus, be found that Mst. Zarina had voiced her expression of the Muslim faith by reciting the Kalma‑Shahadat a establishes a change in her religious faith and the fact of the process or rite of conversion having been performed is un-contradicted and, clear.

5. The religious system and legal system of Islam are inextricably interwoven and operate substantially as one. It becomes difficult on matters of personal law or personal religion in many cases to say where the religious principles end and where legal principles begin. The principles we are concerned with in this case are laid down in Holy Quran itself having behind them all the force and the full religious sanction of being essentially part of the principle of the religion of Islam. This is in itself enough to show that the principle; of law enforced among Muslims are all derived more or less directly' solely from the Holy Book and the saying of the Prophet Muhammad (p.b.u.h.) which themselves form the very basis of their religion. It is impossible then to say that the principle of social conduct Midi down in these authoritative sources are not as much part of the' Muslim religion as they are part of their legal system.

6. A person's religious belief if not a tangible thing which can be seen or touched. It is the mental condition of one's believing in certain articles of faith that constitutes one's religion and if one ceases to believe in them, which again is a mere mental condition, one automatically ceases to profess that religion which is made up of those articles of faith. Consequently to probe further into the matter and to try to ascertain the true nature of one's disbelief is sheer intermeddling, not justifiable on any ground and is not within the province of the Court to enquire into the genuineness or otherwise of the conversion and it is immaterial whether motive of Mst. Zarina was a genuine conversion or a mere device to get rid of her husband. The evidence in this case coupled with the conduct of the lady in marrying a Muslim later showed that she had adopted Islam, not as a device or as temporary measure but with the intention of remaining a Muslim for ever and in the absence of any evidence to the contrary we are bound to hold that her conversion cannot be regarded as colourable transaction or that it should not be acted upon. We are of the view that the conversion was made bona fide. If the conversion is legal and if there is no statutory restriction then the Court is bound to give legal effect to its consequences. The effect of conversion to Islam upon the character and status of the person so converted is that the convert renounces all his religious and personal law and immediately adopts the Muslim religion and personal law and is completely cut off from the past. He/she accepts a new mode of life and enters a new domain where his/her deeds, words and actions are governed by the law of his/her new religion and his/her future in all respects of life becomes amenable to Muslim Law. It has been laid down in the Holy Quran in Surah Baqra (11:221). (Do not marry unbelieving women (idolaters), until' they believe; A slave woman who believes is better than an unbelieving woman. Even though she allure you Nor marry (your girls) To unbelievers until. They believe; A man slave who believes is better than an unbeliever, Even though tie allure you. Unbelievers do (but) Beckon you to the Fir But Allah beckons by His Grace to the Garden (of Bliss) and forgiveness, and makes His Signs clear to mankind: That they may celebrate His Praise). As regards the right to dissolve marriage performed before conversion to Islam, the Holy Quran provides Ayat No.10 of Surah IX (Mumtahana) as follows:‑ (O'ye who believe'. When there come to you believing women refugees, examine (and test) them: Allah Knows best as to their Faith: if ye ascertain that they are Believers, them send them not back to the Unbelievers. They are not lawful (wives) for the Unbelievers, nor are the (Unbelievers) lawful (husbands) for them). One legal incident of marriage is the permission to cohabit but, gohabitation by a non‑Muslim with a Muslim is not allowed. Any cohabitation after the conversion is then clearly unequivocally forbidden. It can, therefore, safely be held that under the Muslim Law a Muslim woman can only marry a Muslim. She can neither marry an idolater nor a Christian nor a Jew and a marriage contracted with any one of those is void. It is most unconscionable to compel a wife to continue to owe her marital allegiance to a person whose religion she has relinquished and' whose Society she abhors. The same view was also expressed by the learned Single Judge in Farooq Leiver's case P L D 1958 (W. P.) Lah. 431 referred to and relied by the trial Court in the impugned judgment but the declaration sought for was refused on other considerations as the facts of the precedent case were different. The appellants as citizens of Pakistan are entitled to avail the provisions of Muslim Law. The position that emerges is than the previous marriage of Mst. Zarina with her Christian husband stood dissolved. The argument that the Christianity does not recognize dissolution of marriage does not benefit the complainant, at the most it entitles him to go, about the word saying "I, have a wife on paper" but no Court can order a Muslim wife to go to him and perform sexual obligation‑‑‑ a natural incident of a marriage, because any cohabitation after her conversion is clearly and unequivocally forbidden in Islam and Muslim wife cannot live as wife with a non‑Muslim without doing extreme violence to her religious opinion and the social feelings in which she has now placed herself. The plea raised by the appellants; therefore, must be held to be a good plea, as it has been ordained in the Holy Quran.

7. A Division Bench of this Court comprising the Hon'ble Chief Justice and Mr. Justice Mufti Syed Shujaat Ali Qadri in Cr. Rev. No.77/L of 1987 where the similar question was involved has held: Respectfully following the view expressed above we hold that by conversion to Islam Mst. Zarina's earlier marriage with Dainal Masih was dissolved and on account of her subsequent marriage with co‑accused, she is not guilty of any offence. The appeal is, therefore accepted, the conviction and sentences passed against the appellants are set aside and they are acquitted of the charges. Mst. Zarina (Mst. Riffat Bibi) daughter of Umar Masih is on bail. Her bail bond stands discharged. Appellant Afzal Masih son of Barkat Masih shall be released forthwith if not required in any other case. M.B.A./416/FSC Appeal accepted.