MAULANA MUHAMMAD TAQI USMANI, J.---Ghulam Muhammad petitioner No.1 and Mst. Kaniz Fatima, petitioner No.2 were convicted by the learned Additional Sessions Judge, Jhang vide his judgment dated 9-10-1991 under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and were sentenced to 10 years' R.I., a fine of Rs.2,000 and 30 stripes each. On their appeal before the Federal Shariat Court their conviction was maintained but the sentence of imprisonment awarded to Mst. Kaniz Fatima was reduced to a period already undergone, while the sentence of Ghulam Muhammad, petitioner No.1 was reduced to 4 years' R.I. The other sentences were maintained. Now both of them seek special leave to appeal against the said judgment of the Federal Shariat Court.
2. The proceedings against the petitioners started on a written complaint by Muhammad Ayub, Exh.PF wherein he stated that Mst. Kaniz Fatima, petitioner No.2 is his wife and Ghulam Muhammad, petitioner No.1 had developed illicit relations with her and in consequence thereof he abducted his wife on 26-4-1990. On the basis of this complaint the formal F.I.R. Was lodged in the Police Station Shorkot on 4-5-1990 at 4-30 p.m. It is the case of the prosecution that both the petitioners were living a sinful life.
3. On the other hand, the .Plea of the petitioners is that Mst. Kaniz Fatima had never married Muhammad Ayub. In fact, Muhammad' Ayub is cousin of Mst. Kaniz Fatima. Her father had died and her mother contracted marriage with some other person. Her uncle and cousin wanted to usurp.
The land inherited by her from her father, therefore, Muhammad Ayub, who was already a married person, concocted the story of his second marriage with Mst. Kaniz Fatima. When she came to know the bad intention of Muhammad Ayub, she took shelter in the village Karam Shah where some friends of her father were living. In that village, she contracted a valid marriage with Ghulam Muhammad, the petitioner No.1. These facts are mentioned in her statement under section 164, Cr.P.C. Recorded by the Magistrate, Shorkot tin 27-7-1989.
4. The learned trial Court disbelieved her Nikah with the petitioner, Ghulam Muhammad, while her Nikah with Muhammad Ayub, the complainant, was held to be legal on the basis of Nikahnama Exh.PE and the three witnesses produced by him, therefore, the trial Court convicted and sentenced the petitioners as mentioned above.
5. Another important fact of this case is that, earlier to the registration of this case against the petitioners, a similar case was got registered by Muhammad Ayub against them on 27-6-1989, wherein he had alleged that his Nikah with Mst. Kaniz Fatima took place on 2-6-1989 but she had already developed illicit relations with Ghulam Muhammad, therefore, she was abducted by him on 19-6-1989. This case was cancelled on the basis of a compromise entered into by the parties.
The details of this compromise are disputed between the parties. According to Muhammad Ayub, the case was cancelled because Ghulam Muhammad, the petitioner, had surrendered Mst. Kaniz Fatima to him unconditionally, but on 26-4-1990 he again abducted her, therefore, he was forced to lodge another F.1.R. On 4-5-1990 which formed the basis of this case. Conversely, - the version of Ghulam Muhammad, the petitioner, is that in fact the complainant party had forced him to execute a divorce Decd purporting that he had divorced Mst. Kaniz Fatima. However, this deed was executed under coercion and he was never willing to divorce his wife Mst. Kaniz Fatima, therefore,, he applied to the Chairman, Union Council for revocation of the said divorce Deed. Consequently the said divorce was declared by the Chairman Union ,Council on 21-2-93 to be ineffective vide the document Exh.DC.
6. The learned Federal Shariat Court did not like to resolve the dispute of Nikah between Muhammad Ayub and Ghulam, nor did it give any positive finding on this point. The basic reason which prevailed with the learned Federal Shariat Court while dismissing the appeal of the petitioners is that Ghulam Muhammad himself has admitted that he had divorced Mst, Kaniz Fatima on 7-12-1989 and then he revoked that divorce through the Union Council. According to the learned Federal Shariat Court, he could not revoke the divorce given by him, because it was not permissible under the Sharia. The finding of the Federal Shariat Court in this respect is as follows:-- - "According to the view adopted by this Court, the divorce given by Ghulam Muhammad on 7th December, 1989, became effective and he could not withdraw the same. Admittedly Ghulam Muhammad again had not gone, in for marriage with Mst. Kaniz Fatima and no Halala had taken place. Therefore, cohabitation between the appellants after the divorce would amount to commission of Zina. This inference operates against the respondents even if the marriage between the complainant and Mst. Kaniz Fatima, which the complainant tried to prove by adducing evidence, is not taken into consideration."
7. We have heard the learned counsel for the petitioners to some extent and perused the record.
We find that there are a number of important points which need examination in this case:--- (i)The factum of Nikah of Mst. Kaniz Fatima is the basic point of dispute between Muhammad Ayub and Ghulam Muhammad. According to the principles laid down by this Court in the case of Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95, it seems that it was proper to resolve the dispute of Nikah in a Family Court before the final decision about the criminal liability of the petitioners; (ii)According to the complainant Muhammad Ayub, his Nikah with Mst., Kaniz Fatima took place on 9-G-1989 while he was already married with another woman, and the Nitlah alleged by Ghulam Muhammad took place earlier to it on 28-3-89. On the other hand, the alleged occurrence of elopement of Mst. Kaniz Fatima with Gulam Muhammad took place -on 26-4-1990 while the F.LR. In this case was lodged on 4-5-1990 i.e. 8 days after the occurrence. It is to be seen whether this delay is satisfactorily explained in the circumstances of this case?
(iii)The learned Federal Shariat Court has held that the petitionerGhulam Muhammad could not revoke his divorce according to the Sharia without Halala, but the learned Court did not advert to the question as to what kind of divorce it was? It is obvious that in Sharia the divorce is of several kinds. The Talaq-e-Raj'i can be revoked any time during the period of iddat. Talaq-e-$ain cannot be revoked unilaterally, but a new marriage can be contracted after it. It is only the Talaq-e- Mughallaz that cannot be revoked nor can a new marriage be entered into after it without an intervening marriage with some other person having taken place. We did not find on the record anything to show that the divorce alleged by Ghulam Muhammad was a Talaq-e-Mughallaz. It is to be seen whether in these circumstances it was proper for the learned Federal Shariat Court to presume that the revocation was not valid in Sharia and it amounted to Zina.
(iv)The factum of divorce is not mentioned anywhere except in the statement of Ghulam Muhammad himself, but at the same time it is also stated by him that the divorce deed was got executed by him under coercion. The learned Federal Shariat Court did not go into the question whether or not a divorce under coercion is effective. Even according to the Hanafi jurists who are of the view that a divorce is effective under coercion also, the principle applies only to a situation where the divorce is given orally, but it is held by the Hanafi jurists themselves that if the divorce is given in a written form without speaking the words of Talaq orally, it cannot be held an effective divorce in the case of coercion. It is mentioned in Radd-al- Muhtar, the famous book of the Hanafi Law that: "(When the jurists say that a divorce is valid even in the case of coercion they mean an oral divorce. Therefore, if a person is compelled to write a divorce to his wife under coercion, his wife shall not be divorced because writing stands for speaking on the basis of a genuine need, and there is no such need in a case of coercion:"
This aspect of the case is totally neglected in the judgment of the. Federal Shariat Court.
Even if it is assumed that the Nikah between Ghulam Muhammad and Mst. Kaniz Fatima is not valid, there is nothing on the record to show that they had committed sexual intercourse with each other. No evidence has been led to this effect at all. Even the medical examination of Mst. Kaniz Fatima has not been conducted. The only statement from where the commission of Zina has been inferred is the following admission of Ghulam Muhammad in his statement under section 342, Cr.P.C. Which he made while answering question No. B: Mst.Kaniz Fatima accused is still residing with me as wife: She is my legally-wedded wife".
It needs consideration whether this admission amounts to an admission of Zina and can a conviction under section 10(2) of the ordinance be based on this admission only in the circumstances of the case?
8. These serious points require examination. We, therefore, grant leave to the petitioners. The entire record of the case along with the police file shall be summoned at the time of hearing of the appeal.
M.BA./G-428/S