1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the two appellants who claim to be husband and wife, to examine whether the trial Court in convicting the appellants and the Federal Shariat Court in maintaining their conviction and sentence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, have not failed to follow the law laid down by this Court in Muhammad Azami v. Muhammad lqbal and others PLD 1984 SC 95.
2. The appellant Zafar Hayat was already married to Mst. Shehzadi, the elder sister of the other appellants Mst. Shamim Akhtar. Notwithstanding that, in the middle of June, 1982, the appellant Zafar Hayat took Shamim Akhtar alongwith him ostensibly in order to get for her a Matriculation certificate from Sargodha Board but in fact she was enticed and they both roamed from place to place committing Zina all the while. Mst. Sabhrai P.W.4, the mother of the appellant Shamim Akhtar, lodged a report at Police Station Sahiwal, District Sargodha on 16-7-1982. In that report not only she alleged of the enticement of Mst. Shamim Akhtar by the other appellant but also stated about his earlier marriage with the elder sister of Mst. Shamim Akhtar and a prior marriage of Shamim Akhtar with Muhammad Riaz. It was on the night of 20th/21st August, 1982 that Muhammad Ashraf, S.H.O.
3. P.W.7 arrested both the appellants under section 59/109, Cr.P.C. From the Bus Stand at Lalamusa.
4. Ultimately, the custody of the two appellants was obtained by Masood Ahmad A.S.I. P.W.11 on 28-8- 1982 from Gujrat Jail.
5. At the trial the Nikah of Mst. Shamim Akhtar with Muhammad Riaz was sought to be proved from Abdul Baqi P.Ws. Who performed it on 12-9-1980 and got it registered with Nikah Registrar Abdul Aziz C.W. 2 on 12-6-1982.
6. Both the appellants pleaded that Zafar Hayat appellant had validly divorced Mst. Shehzadi, the sister of the appellant Shamim Akhtar and that thereafter they had on 22nd of March, 1982 entered into a valid marriage at Bhalwal and were husband and wife and had been indulging in sexual intercourse in that capacity and had committed no offence as such.
7. The fact of the appellants committing sexual intercourse while living together as husband and wife having been admitted by the appellants the trial Court examined their plea with regard to the divorce of Mst. Shehzadi and a valid marriage with Mst. Shamim Akhtar and found it not established from the record as would appear from the following conclusion drawn by it:- "As already stated above that the accused Zafar Hayat could not legally marry with Mst. Shamim Akhtar accused being already married with one Riaz and furthermore, the accused has not legally divorced his previous wife, the offence under section 10(2) of Zina (Enforcement of Hudood)
8. Ordinance No. VII of 1979 has been proved by the prosecution against both the accused. The accused Zafar Hayat has committed a very serious offence. He abducted the accused Mst.
9. Shamim Akhtar who is also equally guilty in the crime. The facts and circumstances of this case do not make out any leniency in the matter of sentence. The prosecution has proved the case against both the accused beyond any shadow of doubt. I hold them guilty under section 10(2) of Zina (Enforcement of Hudood) Ordinance No. VII of 1979."
10. The learned trial Court convicted both the appellants under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and finding it not a case of leniency sentenced each of them to undergo rigorous imprisonment for 10 years and pay a fine of Rs.10,000 or to suffer six months in lieu thereof. They were also sentenced to 10 stripes each to be inflicted at Sahiwal Town of which the parties were residents.
11. On appeal the Federal Shariat Court upheld the judgment, maintained the conviction and sentence and dismissed the appeal of both the appellants.
12. In view of the plea taken up by the two appellants namely of a valid divorce having been earlier pronounced somewhere in December, 1981 and that Mst. Shehzadi was no longer the wife of the appellant Zafar Hayat and further that the two appellants had entered into a valid marriage it was incumbent on the Courts in view of the law laid down by this Court in Muhammad Azam's case to have ensured proper enquiry into the matter, either by referring them to the Family Court or undertaking the enquiry themselves. From an examination of the two judgments before us it appears that it was mainly on account of the failure of the appellants to produce evidence with regard to divorce and a valid marriage that their conviction and sentence was recorded.
13. Riaz, the alleged husband of Mst. Shamim Akhtar had not appeared as a witness at the trial. His marriage was said to have taken place on 12-9-1980 but was not registered till 12-6-1982. The date of registration of that marriage coincided with the alleged enticement of the appellant Shamim Akhtar and is subsequent according to their plea to their own marriage performed in March, 1982.
14. Neither Riaz nor Shehzadi was examined The Chairman, Arbitration Council to whom notice was addressed was also not examined with a view to record a clear finding whether divorce was effective or not and if it was not effective, what was the specific defect in it and to what extent it contravened the law of the land. Similarly, the validity of the marriage of the two appellants has not been gone into with that thoroughness and completeness as is expected of the Courts seized of such matters as laid down by this Court in Muhammad Azam's case. In view of the plea taken by the appellants such omissions or failure in the prosecution case should have not taken place.
15. Following the law laid down in Muhammad Azam's case the appeals are accepted, conviction and sentence of the appellants is set aside and their case is remanded to the trial Court for trial in accordance with law laid down. Both the appellants are admitted to bail in the sum of Rs.10,000 with two sureties in the like amount each to the satisfaction of the trial Court. The appellants shall not be treated as convicts undergoing imprisonment.