This appeal is directed against the judgment dated 04.10.2004 passed by learned Additional Sessions Judge, Dera Ghazi Khan whereby the learned trial Court held the appellant Sabir Hussain guilty of the charge under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, in case FIR No, 1 of 2003 dated 02.01.2003, Police Station Sadder, Dere Ghazi Khan. The appellant was accordingly convicted under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 and sentenced to 5 years R,.I with benefit of Section 382-B, Cr.P.C.
Alongwith the appellant, 4 other co-accused namely Mst. Farzana, Mst. Hameeda, Sajjad Hussain and Muhammad Afzal were also tried by the learned trial Court but they were found innocent and were, thus acquitted through the same judgment.
2. The case of the prosecution in brief is that Sabir Hussain appellant knowing that Mst. Farzana was already married with Muhammad Naeem enticed her away with intention to have illicit intercourse and thus committed offence under Section 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, VII of 1979.
3. After completion of investigation, Police submitted challan' before the learned trial Court against the appellant as well as 4 other above named persons and the learned trial Court framed the following charge against all of them on 29.01.2004:-- "Firstly:--That you accused namely Sajid, Sabir, Afzal and Hamid abducted your co-accused Mst.
Farzana during the night between 21/22.12.2002 from the house of complainant, situated in Mauza Gadai Shumali with the intention that Sabir, Sajid, Afzal your co-accused may commit Zina with her. Thus, you have committed an offence punishable under Section 16 of the Offence of Zirta (Enforcement of Hudood) Ordinance, VII of 1979 which is triable and cognizable by this Court.
Secondly:--That you Sabir, Sajid and Afzal accused committed Zina with your co-accused Mst.
Farzana with her consent during the night between 21/22.12.2003 in the area of Mauza Gadai Shumali. Thus, you committed an offence punishable under Section 10 of the Offence of Ztna (Enforcement of Hudood) Ordinance, VII of 1979, which is triable and cognizable by this' Court.
Thirdly:--That you all above named accused took away household articles ornaments and cash amounting to Rs, 2 lacs from the house of the complainant during the night between 21/22.12.2002 situated in the area of Mauza Gadai Shumali, Police Station Saddar. Thus, you have committed an offence punishable under Sections 457 & 380, PPC, which is triable and cognizable by this Court and I hereby direct that you be tried on the above said charge."
All the accused pleaded not guilty. The prosecution then produced evidence and after recording evidence, the statements of all the accused under Section 342, Cr.P.C. were recorded on 20.09.2004.
4. After completion of trial, the learned trial Court only found the appellant guilty of the charge under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 and after convicting him, passed the sentence as rioted above. However, the remaining 4 accused were acquitted by the learned trial Court through the said judgment. Hence, this appeal.
5. Learned Counsel for the appellant has vehemently argued that though Mst. Farzana was married with Muhammad Naeem yet as the matrimonial relations between the parties remained strained throughout and on account of cruel conduct of Muhammad Naeem, it became impossible for them to live within the limits of God, therefore, Mst. Farzan was forced to file a suit for dissolution of marriage on 2.1.2003 before the learned Judge Family Court Dera Ghazi Khan, which was ultimately decreed in her favour on 17.10.2003. After decretal of the said suit as well as completion of Iddat period, Mst. Farzana of her own will and accord, contracted marriage with the appellant on 28.12.2003 and since then they both have been living as wife and husband during which 04 children were born to them. Learned Counsel, therefore, by placing reliance on the case of 'Muhammad Azam Vs. Muhammad Iqbal reported as PLD 1984 Supreme Court 95, submits that no case under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 was made out but the learned trial Court ignored the effect of such decree on irrelevant grounds. Learned Counsel further argued that Mst. Farzana was never enticed or taken away by the appellant for the commission of Zina within the meaning of Section 16 of the said Ordinance and that she of her own free will and consent left the house of her previous husband namely Muhammad Naeem and then filed a suit for dissolution of marriage while living with her mother and it was only after her marriage with Muhammad Naeem when dissolved through a valid decree, she contracted marriage with the appellant that too after the expiry of Iddat and thus the trial of the appellant alongwith 4 other persons was a mala fide exercise on the part of the prosecution. Learned Counsel further argued that as held by the apex Court in the above noted judgment, decree passed by the Judge Family Court is even biding on the Supreme Court of Pakistan and no appeal or writ having been filed against the decree of the learned Judge Family Court, the same had attained finality and could not be ignored by the learned trial Court while recording finding of conviction against the appellant. Learned Counsel for the appellants has brought to the notice of the Court the relevant portion of the learned trial Court (Page 18 of the same) where the learned trial Court discussed the filing of the suit for dissolution of marriage by Mst. Farzana and the other facts to stress that the learned trial Court had no jurisdiction to find fault in the decree, passed by the learned Judge Family Court. Further according to the learned Counsel, the learned trial Court did not find appellant as well as Mst. Farzana guilty of commission of Zina-bil-Raza and acquitted them meaning thereby that the basic requirement of Section 16 of the said Ordinance i.e intention of commission of illicit intercourse was missing, otherwise there was no occasion for the appellant to entice or take away Mst. Farzana as alleged by the prosecution.
6. I have considered the above noted contentions of learned Counsel for the appellant and find force in the same. This Court, therefore, after proper appraisal of evidence, going through the case- law noted above and also examining the record feels that the prosecution miserably failed to bring charge of enticing or taking away Mst. Farzana against the appellant beyond reasonable doubt.
The marriage between the appellant and Mst. Farzana was a lawful marriage having been contracted after passing of decree of dissolution of marriage by a Court of competent jurisdiction and further after the expiry of Iddat The said decree was not challenged by Muhammad Naeem before any Court and the same having attained finality could not be thrown out by the learned trial Court for holding the appellant guilty of the charge.
Today Mst. Farzana alongwith her children was also present in the Court during hearing of the case.
Her father namely Muhammad Shafique was also present in the Court and vehemently opposed this appeal through his learned Counsel namely Syed Mujahid Hussain Naqvi. The learned Counsel for the complainant mainly argued that as Mst. Farzana contracted marriage with the appellant in ,the presence of her first marriage with Muhammad. Naeem, therefore, she was also wrongly acquitted by the learned trial Court. However, on Court question, learned Counsel as well as Muhammad Shafique admitted that Muhammad Naeem never challenged the decree for dissolution of marriage before any Court of competent jurisdiction and the said decree was still in force.
7. The result of the above discussion is that this appeal is allowed; the judgment of the learned trial Court dated 04.10.2004 is set-aside and the appellant is acquitted of the charge. As the appellant did not appear before the Court on the last date of hearing, therefore, his non-bailable warrants of arrest were issued by this Court. Today he was produced by the Police after arrest. He be sent to the jail wherefrom he would be released forthwith if not required in any other case.
8. Above are the reasons for my short order of even date recorded separately.