' IBADAT YAR KHAN, .1.--- Zakir alias Bhola son of Muhammad Wasim has filed this appeal against his conviction by the learned Additional Sessions Judge (Hudood), Karachi East, under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 sentencing the appellant to suffer R.I. For five years, fine of Rs,2,000 or in default of payment of fine to further undergo S.I. For one year and ten stripes.
2. The case originated from F.I.R. Dated 2-124984 lodged by Abdul Mahbood, a fisherman originally from Bangladesh and settled in Karachi. In this F.I.R. The complainant alleged that Mst. Mehmooda Khatoon was married to him in Bangladesh about 27 years before and they had seven children from this wedlock. He had migrated from Bangladesh about 14 years ago and were peacefully residing in Abbas agar Korangi No,l. He proceeds on to say that about 1-1/2 years back he had gone for fishing on the high seas and returned after 10/11 days. On return he found his wife Mst.
Mehmooda Khatoon missing from the house with children. He went out in search of his wife and was informed by P.W.5 Dilawar and P.W.6 Noor-ul-Haq that she had married one Zakir Ali, the present appellant in this case. He charged Zakir Ali for committing Zina with Mst. Mehmooda Khatoon. On this report the police started investigation and after about two months arrested Mst.
Mehmooda Khatoon as well as the present appellant. The case was challaned by Korangi Police Station, Karachi, and both were sent up for trial to the Court of learned Additional Sessions Judge (Hudood) Karachi East.
3. The prosecution has examined seven witnesses in all. The witnesses germane to the prosecution story are, however, two only. P.W.1 Abdul Mahbood and P.W.2 Muhammad Ilyas, a grown up son of the complainant aged 17 years.
4. P.W.1 Abdul Mahbood has reproduced his version in the F.I.R. And charged his wife and the appellant with the offence of Zina. He was confronted with the Photostat copy of the divorce deed, which is alleged to have been executed by him on 22-11-1981, but he did not accept the execution of this document.
5. P.W.6 Noorul Haq has supported the version of the complainant and stated that he happened to know Zakir All accused present in Court since about 3/4 years hack. He had noticed that Mst, Mehmooda Khatoon and Zakir Ali were living together. He had questioned Zakir as to how Mst.
Mehmooda Khatoon, who happened to be wife of Abdul Mahbood, was living with him. He replied that Mst. Mehmooda Khatoon had told him that her husband had gone out for fishing on high seas and had died there leaving her and her minor children without any support and in a destitute condition. Finding her helpless the appellant had agreed to marry her. That after sometime Abdul Mahbood had appeared in a limping condition and informed him that he had met with an accident. This witness had provided information to Abdul Mahbood that his wife had married Zakir Ali.
6. P.W.2 Muhammad Ilyas seems to be a most important witness in the case. He is the son of Abdul Mahbood born. From the womb of Mst. Mehmooda Khatoon. It would be profitable to reproduce his version in detail. He has stated in Court as follows: "The name of mother is Memoona. My mother has married to the accused Zakir present in the Court. He resides in my Mohalla. My real father Abdul Mahbood had gone to Bangladesh about six years back and his whereabouts were not known to us for about four years of his departure from Pakistan. My mother, therefore, married with the accused Zakir about five/six months prior to return of my father. On return of my real father Abdul Mahbood from Bangladesh he saw that my mother was living together with the accused and, therefore, he lodged the report against her. My mother and my second father accused Zakir are living together. I am living all alone at present.
Cross to Mr. Ghulam Abbas Advocate for both the accused.
I do not remember the date but I know that my father had divorced my mother at the time of his departure."
7. The appellant in this case in his statement under section 342, Cr.P.C. Has accepted that he has married Mst. Mehmooda, but only after being satisfied that she was a divorcee from her first husband. The appellant also produced a Talaqnama (Exh.27) written in Urdu bearing a thumb- impression and signature in Bengali script purporting to be of Abdul Mahbood. There are also names of three marginal witnesses on this document. It is unfortunate that this document could not be proved for the reason that after placing this document in the hands of the appellant to assure him that she was a divorcee, the woman has disappeared and remained untraceable till today. In the circumstances, neither the script writer, who had written this Urdu document nor the three witnesses whose signatures had been obtained on it could be traced to prove this document, as it was produced and exhibited by the trial Court at the end of the trial i,e, during the statement of the appellant under section 342, Cr.P.C. The complainant was also not confronted with the signatures on this document. We may observe that the question of divorce being the matter of civil right requires investigation and if A any party has any grievance it can take the matter to the Court where this matter can be thoroughly investigated. We have to make a note of the fact that not only the woman Mst. Mehmooda assured the appellant that she was a divorcee but she had also produced document (Exh.27) to inspire confidence in her version when she was contracting marriage with the present appellant so much so that in the Nikahnama dated 18-9-1982 (Exh.28) this fact was specifically mentioned that she was a divorcee. All this material produced in the case put together would show that the present appellant contracted marriage with Mst. Mehmooda in good faith on her statement which was supported by documentary evidence. We find no evidence on the record to show that the appellant married Mst. Mehmooda B having any knowledge or suspicion that the woman was making a false statement or the story of divorce was fictitious.
Indeed, the statement of the son himself supported the fact of divorce. This important aspect coupled with the fact that the version of the complainant that he had gone for fishing and returned after 11 days rebutted by the son who has made a categorical statement that after giving divorce to Mst. Mahmooda he had gone to Bangladesh and had returned after 4/5 years completely shatters the prosecution case. The prosecution has not been able to make out any case of Zina against the present appellant and we find no reason to confirm this conviction. The appeal is allowed, the conviction and sentences are set aside and the appellant is acquitted of the charge.
He is on bail. His bail bond stands discharged. The notice for enhancement of sentence stands automatically cancelled.