JUDGMENT NAZIR AHMAD BHATTI, C.J.- Complainant Haq Nawaz submitted an application in Police Station. Civil Lines Karachi South on 9- 6-1987 at 11.55 hours wherein he disclosed that his marriage with accused Mst. Harnida had taken place in Multan in 1976 and since the last 10 11 years he was residing with the accused in House No. 109 in Hijrat Colony but they had no issue: that on 18-5-1987 accused Muhammad Aslant, who was his relative, abducted his wife accused Mst. Harnida and they were both living, in adultery in Pak Colony that he had heard that accused Muhammad Aslant had forged a divorce deed and had the married accused Mst. Harnida. This application was incorporated in F.I.R. No. 90/87 of the said Police Station on r he aforesaid date.
2. Accused Muhammad Aslam was arrested on 9-6-1987 and after nvestigation the case against accused Muhammad Aslam was cancelled under section 169 Cr.P.C, by an order of Magistrate on 14-6-1987. However, t was again arrested on 23-12-1987. In the meanwhile Mst. Hamid was also made an accused and both of them were sent up for trial before IInd VklitiOnal Sessions Judge.
Karachi (Southi. And charged both of them under -ection 494 P.P.C, and under section 10(2> of the Offence of Zina Enforcement of Hudood ) Ordinance. 1979 to which both of them pleased not guilty and claimed trial. -
3. The State produced 9 witnesses in proof of the prosecution case .Vhereas with the accused made depositions under section 342 Cr.P.C. They ilso made deponitions on oath and produced defence witnesses' After the :onclusion of the trial the learned Additional Sessions Judge convicted both the accused under section 10< 2 ) of the Hudood Ordinance and sentenced each k them to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 300 - or in default to further undergo rigorous imprisonment for one month. Both the convicts have challenged their conviction and sentence by the ippeal.In hand.
4. I have heard learned tounsel for the parties at length who also led jne though the entire record of the case.
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5. The case of complainant Haq Nawaz was that appellant Mst.
Hamid-was still his wife when she was allegedly abducted by her co-accused appellant Muhammad Aslam and they had both forged Nakah-nama and Ikere Jiving in adultery. Whereas the case of both the appellants was that Y!St. Hamida had been divorced by Haq Nawaz bv a divorce deed executed m 9-2-1986 and thereafter she had contracted second marriage with her co- iccused Muhammad Aslam on 25-3-1987 and that they had not committed pm- offence. In order to prove their contentions both the appellants-produced J.M. 2 Noorus Zaman who had performed their Xakah on 25-3-1987 and J.M. 3 Abdul Razzak and D.M'. 4 Abdul Majeed were witnesses of that hah. The appellants had also produced. Ex. 51, B. Copy of statement of Mr. Maula Bux K. Memon retired A.C.M.. Karachi which he had submitted before the High Court of Sindh on 21-2-1988 which he had testified that on 15-2-1988 Haq Nawaz had repeated before him and had admitted the execution of Talaq-nama dated 9-2-1986 and he had attested his signature thefeon. Since the first inquiry the report of the police was also to the effect that no offence had been committed by appellant Muhammad Aslam and thereafter the case was cancelled against him.
6. It transpired that the learned Additional Sessions Judge convicted both the appellants only on the ground that the signature of Haq Nawaz on the divorce deed did not tally with his other signature. However, this exercise was beside the point when sufficient independent and uninterested evidence had been brought on the record to show that Mst. Hamida had already been divorced by her first husband Haq Nawaz when she solemnized her second marriage with her co-accused appellant Muhammad Aslam. Especially when her first husband had himself admitted before a Magistrate the execution of the divorce deed. It is a pin- that the said marriage of the appellants was declared invalid by the learned trial Judge in spite of all the aforesaid evidence and the couple living'a validly and legally married life were declared t9.Be living in adultery.
7. Both the appellants had not committed any offence for which they were convicted and sentenced. Consequently the appeal of both appellants Muhammad Aslam son of Haji Gaman and Mst. Hamida his wife is accepted. The conviction and sentence of both the appellants are set aside and they are acquitted of the offence for which they were convicted and sentenced, by the IInd Additional Sessions Judge. Karachi iSouth! On 19-5-1996. They are present on bail. Their bail bonds stand discharged.
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