' Lal Khan and Mst. Batool Bibi, both appellants herein, were convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by Additional Sessions Judge, Chiniot by judgment, dated 23-2-1994 and each of them was sentenced to undergo rigorous imprisonment for 7 years, to suffer 10 stripes and to pay a fine of Rs,7,000 or in default to further undergo rigorous imprisonment for 6 months. Both the convicts have challenged their conviction and sentence by the appeal in hand.
2. Complainant Muhammad Nazir, maternal-uncle of appellant Mst. Batool Bibi, submitted a written complaint to Police Station Lalian on 31-7-1991 wherein he charged appellant Lal Khan and the other acquitted accused for the abduction of appellant Mst. Batool Bibi on 25-6-1991. He also charged appellant Lal Khan for committing sexual intercourse with his co-accused Mst. Batool Bibi, although she was legally-wedded wife of Muhammad Hayat, another nephew of the complainant.
Both the appellants and their co-accused Mathela, Ata, Hayat, Riaz, Sarfraz and Allah Yar were charged under section 11 of the Hudood Ordinance as well as appellant Lal Khan and Mst. Batool Bibi were both charged under section 10(2) thereof. All the accused pleaded not guilty to the charges and claimed trial.
3. The case of the prosecution was that appellant Mst. Batool Bibi was legally-wedded wife of P.W.4 Muhammad Hayat and during the subsistence of that marriage she had developed illicit relationship with her co-accused appellant Lal Khan who had abducted her and both were living in adultery. On the contrary the case of appellant Mst. Batool Bibi was that her previous husband P.W.4 Muhammad Hayat had divorced her and thereafter she had contracted marriage with her co-accused appellant Lal Khan against the wishes of her family and for that matter she had been falsely implicated in the case and the defence of appellant Lal Khan was that he had married Mst.
Batool Bibi after she had obtained divorce from her previous husband. It shall be seen that the factum of previous marriage of appellant Mst. Batool Bibi with P.W.4 Muhammad Hayat was not controverted by both the appellants but their defence was that P.W.4 Muhammad Hayat had divorced Mst. Batool Bibi whereafter Lal Khan had married her. In order to prove their defence, the appellants produced Exh.D.B., copy of plaint of Mst. Batool Bibi for jactitation of her marriage with Muhammad Hayat. Exh.D.C. Copy of judgment of the Family Court in that case and copy of judgment, dated 7-11-1994 passed by a learned Judge of Lahore High Court in the writ petition of Mst. Batool Bibi challenging the judgment of the learned Additional District Judge, Chiniot, all these copies show that the factum of divorce of Mst. Batool Bibi from her previous husband P.W.4 Muhammad Hayat was established.
4. In the circumstances the allegation of the complainant party that appellant Mst. Batool Bibi was wife of P.W.4 Muhammad Hayat and she had been abducted by appellant Lal Khan and both were living in adultery was disproved. As such no charge could he proved against both the appellants.
5. Consequently the appeal is accepted. The conviction and sentence of both the appellants recorded on 23-2-1994 by the learned Additional Sessions Judge, Chiniot are set aside and they are acquitted of the offence for which they were convicted and sentenced. They are on bail. Their bail bonds stand discharged.