MAULANA MUHAMMAD TAQI USMANI, J.---The two petitioners Mst. Zahida Shaheen and Aqil-ur- Rehman were convicted by the learned Additional Sessions Judge, Rajanpur on 20-11-1990 under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and were sentenced to undergo rigorous imprisonment for 3 years, 30 stripes and a fine of Rs. 15,000 each or one year R.I. In the case of default in the payment of fine. On their appeal before the Federal Shariat Court their conviction was maintained, however, the sentence of imprisonment awarded to Mst. Zahida Shaheen was reduced to a period already undergone, while the punishment of Aqil-ur-Rahman was reduced to 2 years' R.I. And the sentence of fine was reduced from Rs. 15,000 to Rs.5,000 or six months' R.I. In default; however, the punishment of 30 stripes to both the petitioners was maintained.
2. Mst. Zahida Shaheen is the niece of Mst. Razia, PW-4, the previous wife of Aqil-ur-Rahman. The case of the prosecution is that Aqil-ur-Rahman married Zahida Shaheen on 21-2-1987 when his Nikah with Mst. Razia, the paternal aunt of Mst. Zahida Shaheen was intact. As Aqil-ur-Rahman could not combine both the aunt and the niece in his marriage, his Nikah with Mst. Zahida Shaheen was invalid and the sexual intercourse committed by them is tantamount to Zina.
3. It is admitted by the prosecution that Aqil-ur-Rahman has divorced his previous wife Mst. Razia but according to the prosecution this divorce was given on 5-7-1987 while his Nikah with Mst.
Zahida Shaheen took place on 21-2-1987 i.e. About 4-1/2 months earlier than this divorce, therefore, the marriage with Mst. Zahida Shaheen was effected during the subsistence of his marriage with Mst. Razia.
4. On the other hand, the version given by the petitioners is that Aqil-ur--Rahman had divorced Mst. Razia on 22-10-1986 i.e. Nearly for months earlier than his Nikah with Mst. Zahida Shaheen. In order to prove this divorce, Aqilur Rahman has produced a Talaqnama Exh.D-1 which is attested by Syed Mulazim Hussain and Syed Khalid Mehmood. He has also examined IChalid Mehmood, the marginal witness of this Divorce Deed who, while appearing as D.W.1, has deposed that the talaqnama Exh.D-1 was scribed by Aqil-ur- Rahman and he, along with Mulazim Hussain, brought it to the house of Mst. Razia who refused to receive it, but they informed her that Aqil-ur-Rahman had divorced her through this Deed.
5.Both the Courts below have disbelieved the Talaqnama Exh.D-1 and have held that actually Aqil- ur-Rahman had divorced Mst. Razia on 5-7-1987 and not on 22-10-1986, therefore, his marriage with Mst. Zahida Shaheen on 21-7-1987 was invalid.
6.Mr. Muhammad Ismail Qureshy, the learned counsel for the petitioners vehemently contended that there was no cogent reason for disbelieving the Talaqnama Exh.D-1 which was duly proved by the evidence of Syed Khalid Mehmood, DW-1. The only factor which probably prevailed with the two Courts below while rejecting the Talaqnama, Exh. D-1 is that Aqil-ur-- Rahman had failed to give a notice of this Talaqnama to the Chairman, Union Council, as required by section 7 of the Muslim Family Laws Ordinance, while he has given a notice to the Chairman on 5-7-1987, for the Talaqnama Exh.P.E.
7.The learned counsel referred to the judgment of this Court in the case of Allah Dad v. Mukhtiar reported in 1992 SCMR 1276, where it was held. That failure to give notice of a Talaq to the Chairman, as required under the Muslim Family Laws Ordinance, does not render a divorce ineffective or invalid. The learned counsel further contended that in fact Aqil-ur-Rahman had divorced Mst. Razia on 22-10-1986 but being unaware of the requirement of giving a notice to the Chairman, he failed to do so and later on, when he came to know that such a notice is required under the law, he sent the same on 5-7-1987. It is true that this notice has no reference to the earlier Talaq given on 22-10- 1986 but it was an omission most probably based on some wrong advice, but the fact remains that he has produced a genuine Talaqnama Exh.D-1 which is duly proved by an independent witness namely, Khalid Mehmood, D.W.1.
8.The learned counsel further submitted that even if it is admitted for the sake of argument that Aqil-ur-Rahman had not divorced Mst. Razia before his marriage with Mst. Zahida Shaheen, it might have been due to his ignorance about the fact that he could not marry the niece of his wife during the subsistence of his marriage with her because this injunction of Sharia is not normally known to the general public. In this case, his act of sexual intercourse cannot be termed as "Zina", because "Zinc" is defined in section 4 of the ordinance as follows: "Zina. A man and a woman are said to commit `Zina' if they will fully have sexual intercourse without being validly married to each other."
9.According to the learned counsel, the illegal sexual intercourse committed by the petitioner cannot be said to have been committed "wilfully".
In this respect the learned counsel referred to the judgment of this Court in the case of Mst Bashiran v. Muhammad Hussain reported in PLD 1988 SC 186, where the term "willfully" has been thoroughly explained. The learned counsel argued that it is necessary for establishing an offence against a person that he should have mensrea which is lacking in this case.
10. In the alternative, the learned counsel argued that a marriage with the niece of one's wife does not amount to a void marriage; rather it falls under the category of irregular one, therefore, it could not be termed "void" as contemplated in clause C of section 2 of the Ordinance.
11. After hearing the learned counsel and perusing the record, we feel that the submissions of the learned counsel have invoked some substantial legal points which require an authoritative pronouncement from this Court. We, therefore, grant leave to the petitioners.
12. The learned counsel also requested for bail, but since Mst. Zahida Shaheen is now out of prison after the reduction of her sentence of imprisonment, it will not be proper to release Aqil-ur- Rahman on bail because it may help him in living with her before the final decision about the nature of his marriage with her. The request for bail is, therefore, refused, however, we direct that this appeal may be fixed at an early date.