' ABAID ULLAH KHAN, J.--- It may be useful to introduce the dramatis personae whose acts gave rise to the cause which has come before this Court. Aqil-ur-Rehman, appellant 1, is employed in the clerical cadre of the District Education Office, Rajanpur. He married Mst. Razia, P.W.4, a school teachress, on the 22nd October; 1977. A son and two daughters were born during their wedlock.
According to her own admission she had been living separate from him since March, 1984.
2. Mst. Zahida Shaheen, appellant 2, is the daughter of Mst. Razia's elder brother named Ata Muhammad. She is also a school teachress. Aqil-ur Rehman, appellant 1, and Mst. Zahida Shaheen, appellant 2, married- each other on the 21st February, 1987. The marriage was solemnized in the house of a person not related to them, in the absence of either party's parents as also in the absence of Wall of Mst. Zahida Shaheen; she gave her consent to marriage.
3. Niaz Muhammad, P.W.3, a practising Advocate of Rajanpur, is the brother of Mst. Razia and father's brother of Mst. Zahida Shaheen. He is complainant in the case.
4. Aqil-ur-Rehman, conforming to the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), gave on the 5th July, 1987, to the Chairman of the concerned Union Council notice (copy Exh D.C.) laying information of having divorced Mst. Razia. A copy of the notice was supplied by him to Mst. Razia. Attached with the copy of notice was the copy of Talaqnama (Exh.P.E.).
5. On the 12th July, 1987, notice issued by the Chairman for ostensible purpose of bringing about a reconciliation, as envisaged by subsection (4) of section 7 of the Ordinance, was received by Mst.
Razia through his brother, the complainant. The notice directed the parties for appearance before the Chairman on the 14th July, 1987. No reconciliation having taken place the divorce became effective on the 5th October, 1987.
6. After making somewhat- unfruitful attempts to get the appellants prosecuted through police, Niaz Muhammad made complaint before the Court on the 26th April, 1988, for bringing the appellants to book for contracting void marriage during the subsistence of marriage of Aqil-ur- Rehman with Mst. Razia and thereby committing the offence of Zina.
7. Aqil-ur-Rehman came up with the plea, which he tried to establish by production of evidence, that he had actually divorced Mst. Razia on the 22nd October, 1986, through the Talaqnama, Exh.D.1, and it was after divorcing her that he had gone in for marriage with Mst. Zahida Shaheen on the 21st February, 1987. He examined Syed Khalid Mahmood, D.W.1, who is also a marginal witness of Exh.D.1, to say that Aqil-ur-Rehman had scribed the Talaqnama, Exh.D.1, in his presence and in the presence of the other marginal witness, Syed Mulazim Hussain (not produced). Syed Khalid Mahmood bore testimony to the fact that he alongwith Syed Mulazim Hussain had gone to the house of Mst. Razia to deliver her Talaqnama but she had refused to receive the same. Neither of the appellants was prepared to make statement on oath. As a matter of fact they said that they were not ready to appear as witness in defence even if they were to be compelled to do so.
8. The learned trial Court did not believe appellant l's story of divorcing Mst. Razia on the 22nd October, 1986. It did not. accept at face value the testimony of Syed Khalid Mahmood, D.W.1. It formed the view that appellant 1 had pronounced Talaq upon Mst. Razia when he had given on the 5th July, 1987, the notice whose copy is Exh.P.C. It concluded that the appellant's marriage during the subsistence of appellant l's marriage with Mst. Razia was not valid and held them to be guilty of commission of offence of Zina for their cohabiting during that period and accordingly convicted them and sentenced each of them under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), to undergo rigorous imprisonment for five years, suffer thirty stripes of whipping and pay a line of Rs,15,000 and in default of payment thereof to pass further rigorous imprisonment for a year. The appellants were held to be entitled to the benefit of the provisions of section 382-B of the Code of Criminal Procedure for the purpose of adjustment of the period of their detention during trial of the case against the term of sentence of imprisonment. The learned Court directed that the sentence of whipping be executed in a public place. Feeling aggrieved theappellants have approached this Court in appeal, impugning the validity of the decision of the learned trial Court.
9. The first point that requires determination is whether Aqil-ur Rehman divorced Mst. Razia on the 22nd October, 1986, as asserted by him. For its resolution it would be helpful to keep in view the contents of the Talaqnama bearing the date of 22nd October, 1986. Exh.D.1, of the proceedings which Sycd Khalid Mahmood and Syed Mulazim Hussain recorded thereon touching their attempt to deliver it to Mst. Razia, Exh.D.1/A of the Talagnama, dated 5th July, 1987 (Exh.P.E.), executed by Aqil-ur Rehman and sent by him alongwith notice of Talaq and of the notice of Talaq dated the 5th July, 1987 (Copy Exh.P.C.). The Talaqnama, Exh.D.1 runs as under:-- {{URDU TEXT}} The record of proceedings, Exh.D.1/A, is to the following effect:-- {{URDU TEXT}} The contents of the Talaqnania, dated the 5th July, 1987 (Copy Exh.P.E.) are reproduced below:-- {{URDU TEXT}} {{IMAGE}} ' The notice of Talaq, copy Exh.P.C. is couched in the following words: {{URDU TEXT}}
10. The Talaqnama (copy Exh.P.E.) which Aqil-ur-Rehman executed on the 5th July, 1987, when he sent notice to Talaq (copy Exh.P.C.), is conspicuous by absence of any reference to pronouncement of earlier Talaq especially on the 22nd October, 1986, rather it recites: {{URDU TEXT}} that is to say, that he had divorced her on the 5th July, 1987. Had he pronounced divorce earlier as he claimed he had done so on the 22nd October, 1986, he must have made some mention of that fact in the Talaqnama, dated the 5th July, 1987, or in the notice of Talaq. Being in the Education Department and literate he may be presumed to be familiar with the process of giving notice to the Chairman after pronouncement of Talaq and of sending a copy of the same to the divorcee.
The hard fact remains that no such notice pursuant to the alleged divorce through the Talaqnama, dated the 22nd October, 1986, Exh.D.1, was ever given by the appellant. The manner of his deputing of Syed Khalid Mahmood, D.W.1 and Syed Mulazim Hussain to deliver Talaqnama to Mst. Razia, to say the least, is quite queer. If she had declined to receive the Talaqnama he would have taken steps to send it to her by post had it been actually executed. It seems to be a manufactured affair.
The conclusion reached by the learned trial Court that he had not divorced Mst. Razia on the 22nd October, 1986, as asserted by him, is correct and is endorsed. He divorced her on the 5th July, 1987.
11. Aqil-ur-Rehman married Mst. Zahida Shaheen on the 21st February, 1987, during the subsistence of his marriage with Mst. Razia. Under Muslim Law his marriage with Mst. Zahida Shaheen, in face of existence of his marriage with Mst. Razia, was indisputably prohibited. It remains to be seen whether the appellant's cohabitation inter se till the dissolution of appellant l's marriage with Mst. Razia amounted to commission of offence of Zina.
12. The definition of 'marriage' and `Zina' contained in sections 2(c) and 4 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), made use of by the learned counsel for the appellants in the course of arguments may he conveniently reproduced:-- Section 2(c). "marriage" means marriage which is not void according to the personal law of the parties, and "married" shall be construed accordingly.
Section 4 Zina: A mian and a woman are said to commiit "Zina" if they wilfully have sexual intercourse without being validly married to each other.
All the parties involved in the case are Sunnis and followers of Hanafi Fiqh. There is no quarrel with the proposition that in the presence of Mst. Razia as his wife Aqil-ur-Rehman could not have gone in for marriage with Mst. Zahida Shaheen as the two wonien were so related to each other that if either of them had been a male they could have lawfully inter-married. Referring to what is contained in sections 260 to 264 and 267 of D.E. Mulla's Principles of Mahomedan Law, the learned counsel described marriage between the appellants during the subsistence of appellant Ps marriage with Mst. Razia as irregular ({{URDU TEXT}}) which, according to him, was not void ({{URDU TEXT}}) within the purview of the definition of marriage contained in section 2(c) of the Ordinance and consequently, he argued, the appellants would not be taken to have commiitted Zina. However, as is apparent from section 264 of Mulla's treatise an irregular marriage is not a valid marriage and, therefore, the appellants could not be said to be validly married and hence their cohabitation while appellant l's marriage with Mst. Razia existed would aniount to offence of Zina as conteniplated by section 4 of the Ordinance. Identical points canie up for decision before the Supreme Court of Pakistan in Ghulani Shabir Shah v. The State 1983 SCMR 942, where irregular marriage was not taken to be synonymous with a valid marriage for the purpose of section 4 of the Ordinance. The judgnient fornis coniplete answer to the argument of the learned counsel. It may be instructive to reproduce in extenso the portion of the judgnient dealing with the issue:-- "The learned counsel for the petitioner, Mr. Yousuf Saraf, has taken up three main grounds for challenging the decision of the Federal Shariat Court. In the first place it has been contended that marriage has been defined in Ordinance, No,VII of 1979 as "marriage which is not void according to the personal law of the parties" and the word "married" shall be construed accordingly. He has then referred to the personal law applicable to the portion as contained in principles of Mahoniedan Law by Mulla, paragraphs 264 to 267. A marriage which is not valid is either void or irregular. It is contended that on the basis of this distinction the marriage with another sister during the subsistence of marriage with the other sister or during the period of Iddat is an irregular marriage and not void marriage. The punishnient under the Hudood Ordinance would be attracted only if there is, as defined in the Ordinance, a void marriage and not where the marriage is irregular because the latter will qualify as marriage as defined in the Ordinance.......
' We have attended to all aspects of the case and find that none of the grounds is tenable. No doubt marriage has been defined in the Ordinance as marriage which is not void according to the personal law of the parties and the word 'married' has to be construed accordingly. In section 4 while defining Zina the word "marriage" has been qualified by another word 'validly', while in section 5 Zina liable to Hadd the word "marriage" is used without such qualification. A valid marriage has been defined as 'marriage contracted and solemnised in accordance with Shariah with all its constituents and conditions, without any legal inipediment'- (Dr. Tanzilur Rahman: A Code of Muslini Personal Law). Even Mulla's Mohammedan Law rcognizes the distinction of valid and invalid marriages and in the category of invalid marriages are placed the irregular marriages and void marriages. So the moment the learned counsel accepts that it was an irregular marriage, it ceases to be a valid marriage. On no principle of interpretation of statutes can this significant qualifying word "validly" be ignored, treated as redundant or a surplusage. It has to be given a meaning and full effect. So an irregular marriage affords no protection where the law requires as in section 4, a valid marriage."
13. The argument of the learned counsel that the appellants could not be taken to have had sexual intercourse wilfully as envisaged by section 4 of the Ordinance is too specious to be given any iniportance. They knew full well continuance of appellant l's marriage with Mst. Razia when they went through the solemnization of their marriage which was obviously invalid. Their cohabitation has rightly been concluded by the learned trial Court to be offence of Zina and we feel no hesitation in affirniing this finding. The conviction of the appellants recorded by the learned trial Court is upheld.
14. In view of positive finding touching falsehood of appellant l's assertion of divorcing Mst. Razia on the 22nd October, 1986, as well as regarding the invalidity of the appellant's marriage during the subsistence of appellant l's marriage that Mst. Razia the precedent cases, with different sets of facts, cited by the learned counsel for the appellants and listed in the annex, are of little help to advance the appellants' case.
15. The learned counsel for the appellants canvassed for reduction of sentence awarded to the appellants by the learned trial Court. He submitted that the appellants had suffered great humiliation and of late they had off spring. He contended that in case of maintenance of conviction there was also possibility that the service career of the appellants would be adversely affected.
Keeping all the circumstances in view we consider that the sentence of iniprisonment already undergone by Mst. Zahida Shaheen is sufficient to nieet the demands of justice. Therefore, her punishment is reduced to the sentence already suffered by her and mandated penalty of thirty stripes of whipping. She will be taken into custody and after execution of the sentence of whipping will be let off.
16. Aqil-ur-Rehman is niore to be blanied for the villainy. Apart froni commission of offence he tried to forge the evidence to cover it up. His sentence of five years' rigorous imprisonnient and fine of Rs,15,000 is slashed down to two years' rigorous imprisonnient and fine of Rs,5,000. In case of failure to pay the reduced aniount of fine of Rs,5,000 he will pass additional sentence of six nionths' rigorous iniprisonnient. The sentence of thirty stripes of whipping is kept intact.
17. Warrants of arrest of the appellants for the purpose of execution of sentence will be issued. The sentence of whipping will be carried out in jail. With the above-nientioned niodifications in the sentence the appeal stands disniissed.
Sentence reduced.