' MUFTAKHIRUDDIN, J.-- This is an appeal against the order of conviction, dated 31-3-1988 passed by the learned Additional Sessions Judge (Hudood) East Karachi whereby the appellants, Salamat Ali alias Salamat Masih son of Suba Masih and Mst. Allah Rakhi alias Nasreen wife of Salamat Masih have been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. Salamat Ali was sentenced to five years' R.I. With 10 stripes and a fine of Rs,1,000 or in default of payment of fine to further undergo R.I. For three months. Mst. Allah Rakhi has been sentenced to four years' R.I. With five stripes and a fine of Rs,1,000 or in default of payment of fine to further undergo R.I. For three months. Both the appellants were tried on the basis of report lodged by Bashir Masih, the father of Mst. Allah Rakhi at Police Station Korangi, Karachi on 21-6-1985. It was alleged that since 30-5-1985 Mst. Allah Rakhi was missing from the house. The details of the allegations are not necessary because the facts of this case are almost admitted that both the appellants had embraced Islam on 14-6-1985 and thereafter had married each other on 18-6-1985 and since then have been living as husband and wife. The trial Court found them guilty of the offence under section 10(2) of the said Ordinance and sentenced them as melitioned above.
' On appeal to this Court (Criminal Appeal No, 94/K of 1988) decided on 18-12-1986 the case was remanded to the trial Court to examine Ilyas Masih as a court-witness to ascertain whether the plea of divorce raised by Mst. Allah Rakhi was correct. After the remand Ilyas Masih was called and he deposed that he had divorced Mst. Allah Rakhi long ago in the year 1978 and since then had no connection with Mst. Nasreen. A respectable member of the Christian Community also appeared and confirmed the fact that in their Punchayat the husband had pronounced Talaq. In spite thereof the trial Court was of the view that since the Christian religion does not permit divorce and under this religion the marriage lasts unto death but the Divorce Act, 1869 permits the Courts to grant divorce to the persons professing Christians faith. The separation between the Christians may be validly made. The trial Court, therefore, held that the marriage between Ilyas Masih and Mst. Allah Rakhi was not dissolved and still persisted.
2. The point of law involved in this case has been set at rest by a Division Bench of this Court comprising of Hon. Mr. Justice Gul Muhammad Khan, Chief Justice and Mr. Justice Mufti Syed Shujaat Ali Qadri in Sardar Masih v. Haider Masih Criminal Revision No, 77/L of 1987 (PLD 1988 FSC 78). It has been held that:- {{URDU TEXT}} ' In Mst. Zarina v. The State Criminal Appeal No, 321/L of 1987 (PLD 1988 FSC 105) the same view was taken. In view of the law laid down by this Court in the above two decisions it has to be held that Mst. Allah Rakhi had embraced Islam on 14-6-1985. Her marriage stood dissolved with Ilyas Masih. It is unfortunate that the learned trial Court took up stand which even Ilyas Masih was not prepared to adopt and he had already separated himself from Mst. Allah Rakhi and had taken the other wife and was leading a life with her.
3. The upshot of the above discussion is that the marriage between Mst. Allah Rakhi and Ilyas Masih having been dissolved, Mst. Allah Rakhi was free to marry a person of her own choice. The marriage between the appellant, therefore, on 18-6-1985 was legal and no exception should be taken. This was even before the F.I.R.Was lodged. The appeal is, therefore, allowed. The conviction and sentences passed against both the appellants are set aside and they are acquitted of the charges.
They are on bail. Their bail bonds stand discharged.