1. JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.-Conviction and sentence of the petitioners for offence under section 10(2) of Ordinance No, VII of 1979, has been brought under challenge in this petition for leave to appeal. The complainant (Muhammad Sharif) alleged that Mst. Maqsood Mai petitioner convict is his wife since 1978 while the petitioner's plea was that she was married to Shakir Muhammad petitioner convict and that she having been abducted by Sharif the complainant, in fact was lodged against him, but the police did not proceed against him and instead the petitioners were falsely implicated. Both the parties produced copies of respective Nikahnamas Sharif produced witnesses to prove the Nikah and further alleged that a child was born in this wedlock, The petitioners failed to produce evidence to support their Nakahnama. They however alleged that the child was illegitimate.
2. Both the learned Courts below have disbelieved the petitioners' version about the two Nikahs and thus found them, guilty of Zina.
3. Learned counsel has contended that plea of valid Nikah having been raised by the petitioners the procedures laid down in Muhammad Azam v. Muhammad lqbal and others (1), have not been followed by the learned Courts below.
4. It is not every plea regarding the Nikah that would attract the rule relied, upon by the learned counsel. It has been clarified in the said judgment morel than once that if the plea prima facie appears to be frivolous, vexatious, mala fide etc. Then the rule shall not be attracted.
5. However learned counsel has relied on material brought on file as evidence or otherwise to show that the plea was not mala fide and that the petitioners were handicapped in not producing all the necessary witnesses/ documents. After hearing the learned counsel we consider it a fit case to examine whether, the petitioners' pleas regarding the two Nikahs and legitimacy of the child involved in this case is not mala fide as visualised in the case of Muhammad Azam ; and also, whether the rule laid down in the said case is not attracted here. Delay is condoned. Leave to appeal is granted. The entire record of the trial Court shall be printed.
6. Request for bail made by the learned counsel is refused because in case the petitioners are guilty, it is likely that they might continue committing the offence they have been charged with. The plea regarding suspension of sentence of whipping only however is allowed. It shall remain suspended during the pendency of this appeal in this Court.
(1) PLD 1984 SC 95