' ZAFAR PASHA CHAUDHARY, J.--- Maqbool Ahmad and Mst. Nasreen Bibi, appellants stand convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to three years' R.I. Each with fine of Rs,10,000 each and in default of payment of fine to further undergo three months' S.I. Each.
2. The prosecution case in brief as revealed from the application moved by Muhammad Akram is that Mst. Parveen sister of Muhammad Akram had been married to Maqbool, appellant and as a result of exchange of marriage Mst. Zubaida, sister of Maqbool, appellant had been married to Muhammad Akram. After some time the relations between the two families became strained, as a result of which Maqbool Ahmad, appellant brought Mst. Zubaida to his house and she is living with the appellant along with her four children. As regards Mst. Nasreen appellant, it is alleged that in fact she was wife of Muhammad Khan, although the Nikah in between them had been performed yet Rukhsati has not taken place. It is alleged that without obtaining divorce from Muhammad Khan, Mst. Nasreen Bibi started living in adultery with Maqbool Ahmad, appellant, it is further alleged that Mst. Nasreen Bibi adopted a false name of Razia Bibi and posed herself as wife of Maqbool Ahmad, appellant. It is also alleged that Nikah purported to be in between Razia Bibi and Maqbool was also used as an evidence of their being man and wife. During course of investigation it transpired that in fact name of Mst. Nasreen Bibi, appellant was not Razia Bibi and she had prepared a forged document in order to screen or shield her illicit liaison with Maqbool Ahmad appellant. According to the prosecution, Maqbool and Mst. Nasreen appellants did not get married to each other and keep on living an adulterous life.
3. The case was registered against the appellants and they were sent up to face trial. The learned trial Judge, vide his judgment dated 15-6-2004, convicted both the appellants and awarded them sentence as noted above.
4. Learned counsel for the appellants in support of the appeal has come forward with a pathetic story. According to him, the appellants have been victimized on account of strained relations in between the two families as noted above. Maqbool Ahmad, appellant had divorced the sister of Muhammad Akram, complainant and he has also brought his sister Mst. Zubaida from the house of Muhammad Akram, as such according to Muhammad Akram, his house was deserted. According to the learned counsel, as a counter-blast to these unfortunate events, the appellants were roped in the false case.
5. The learned counsel submits that Muhammad Khan in fact had divorced Mst. Nasreen Bibi and thereafter Mst. Nasreen Bibi entered into Nikah with Maqbool Ahmad, appellant, as such they are both legally married man and wife. They were married on 22-10-1994. According to the appellants not only they got married to each other but also Mst. Nasreen Bibi instituted a suit for jactitation of marriage in order to prevent Muhammad Khan from claiming Mst. Nasreen, appellant as his wife.
Suit for Jactitation of marriage was decreed in favour of Mst. Nasreen Bibi. The decree was not challenged any further, as such, the same attained finality. It is further submitted that extreme injustice had occurred to the appellants because both the appellants have been living as man and wife for the last ten' years. They have given birth to five children all are daughters.
6. The appellants are present in Court. They admit themselves to be man and wife and according to them, they are living as such on account of the valid marriage bond in between them. The learned counsel has pointed out that it is not only the question of appellants' conviction rather a very important and sensitive question of legitimacy of five children is also involved. The learned trial Judge did not advert to this aspect of the case.
7. Hudood Ordinances have been enforced in order to ensure a higher standard of morality in the society and Allah Almighty has prescribed very heavy and strenuous punishment against violators of Hudood offences. Unfortunately, these offences are being treated rather lightly and without realizing the deep implication of the relationships, prosecutions are initiated mechanically. The women in this country are already down-trodden and in the instant case it is not only the future of Mst. Nasreen Bibi, appellant but also the future of her young five daughters is involved and the same is under serious stake. The conviction of these two appellants would amount to declare all the five daughters as illegitimate issues. The stigma is so heavy that no person can live honourably by carrying the same. This stigma becomes still worse if the same is attached to a girl. Be that as it may, confining myself to the legal aspects of the case it is observed that both the appellants admit themselves to be man and wife. They have placed on the file a copy of Nikahnama in between them. Islamic jurisprudence does not permit any one to be declared illegitimate merely for technical reasons. The daughters, in view of what has been observed above are the lawful legitimate children of Maqbool Ahmad, appellant. He unequivocally admits the same in Court.
Section 10(2) is attracted only if the offence is committed by two persons, who are not validly married to each other. In case the parties are grown up and admit the marriage, the presumption would be drawn in their favour.
8. In view of what has been observed above, the appellants' conviction and sentence cannot be sustained, the same is set aside. Their appeal is allowed and they are acquitted of the charge against them. Both the appellants are present in Court on bail. They are discharged from their bail bonds.