' Muhammad Siddique 34 and Mst. Zohran were tried by Sessions Judge, Okara under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in case F.I.R., Exh.P.A.
No,24 of 1991 registered at Police Station Cant. Okara on 25-2-1991 at 5-30 p.m. By Niaz Ahmad S.-I.
P.W.7 on the statement of Muhammad Sharif, P.W1.
' Learned trial Judge vide judgment, dated 1-11-1995 convicted both of them under section 10(2) of the said Ordinance and sentenced each of them to undergo R.I. For five years and to suffer fifteen stripes each.
' Muhammad Siddique was also held guilty under section 16 of the said Ordinance, convicted accordingly and sentenced to undergo R.I. For five years and to suffer fifteen stripes.
' Sentences of imprisonment awarded to Muhammad Siddique were ordered to run concurrently.
2. The prosecution case at the trial, was, that the complainant had married Mst. Zohran 23/24 years prior to the registration of the case. Sometime before the occurrence, Muhammad Siddique started visiting the complainant. He developed illicit relations with Mst. Zohran and consequently abducted her for the purposes of committing Zina. P.Ws. Muhammad Hanif and Zulfiqar had seen them i,e, the appellants boarding a bus and had informed Sharif about that. Sharif had requested Siddique to return his wife, he had replied that Mst. Zohran was not prepared to live with him i,e, complainant. The complainant added that Mst. Zohran and Siddique started living together and as a result of the Zina, Mst. Zohran gave birth to a son. Muhammad Sharif had divorced Mst. Zohran by way of Mubarat and had executed Talacinama.
4. According to Exh.D.A. The appellant had entered into marriage 24 years before 11-6-1989 and they had six children. It is recorded in Exh.D.A. That as quarrel takes place amongst them often, they had decided to dissolve the marriage through Punchayat and that as a result of the agreement Mst. Zohran had given the custody of all the children to Muhammad Sharif and Muhammad Sharif had divorced her. According to Exh.D.A. He had pronounced the divorce thrice. Exh.D.A. Apart from bearing thumb-impression of Muhammad Sharif also bears the signature of Muhammad Amir and Mukhtar Ahmad, whose names and particulars are recorded as witnesses. The appellants had examined both of them in defence as D.W.1 and D.W.2 both of them had verified and certified the contents of Exh.D.A.
5. The complainant challenged the plea of dissolution. He produced evidence to show that the notice of Talaq given by him through Chairman Union Council was withdrawn by him on 15-9-1989 (the notice had been given on 1-7-1989).
' Relying on the evidence of withdrawal of notice it was argued on behalf of the prosecution that since the Talaq given by the complainant to Mst. Zohran had been withdrawn by Muhammad Sharif within 90 days the marriage amongst Muhammad Sharif and Mst. Zohran subsisted and so any cohabitation even if it was by way of marriage amongst the appellants was unlawful and amounted to Zina as defined in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
' Learned trial Judge had accepted that argument and consequently had passed the impugned judgment.
6. Learned counsel for the appellants did not challenge the withdrawal of the notice by the complainant on 15-9-1989, nor did he challenge the fact that notice had been given by complainant through Chairman, Union Council on 1-7-1989. He argued that since the marriage had been dissolved by way of Mubarat, no notice of the same was needed to be given, either to the Chairman, Union Council or even to Mst. Zohran through the Chairman, Union Council. According to him the marriage stood dissolved for all intents and purposes and Mst. Zohran was free to enter into marriage with anyone after completion of period of Iddat. In this regard learned counsel placed reliance on reported judgment, as, Muhammad Nawaz v. Mst. Faiz Elahi and 2 others PLD 1978 Lah. 328, Muhammad Shahbaz Ahmad v. Sher Muhammad and another reported in 1987 CLC 1496, Allah Dad v. Mukhtar and another 1992 SCMR 1273. In the case reported at page 328 of PLD 1978 it was held that dissolution of marriage effected through Chula' or Mubarat were not revocable. In the case reported in 1987 CLC 149, it was observed that if marriage was dissolved and divorce deed was executed by mutual agreement it would be deemed that it was a Talaq in the nature of Mubarat and that Talaq given by way of Mubarat was irrevocable from the date of its execution and that provisions of revocation contained in the Muslim Family Laws Ordinance, 1961 were inapplicable. Almost, same dictum was pronounced in the judgment reported at page 1273 of 1992 SCMR. It is also observed in that judgment, that, where, there is a clash between an existing law and the Injunctions of Islam with regard to the validity of a marriage, the Injunctions of Islam shall prevail for the purpose of this Ordinance (i,e, Muslim Family Laws Ordinance (VIII of 1961).
7. There is ample evidence on record in support of the plea of the appellants that Talaq was given by Muhammad Sharif to Mst. Zohran through Punchayat. The agreement was in writing and according to that agreement Mst. Zohran had handed over the custody of six children i,e, five daughters and a son to Muhammad Sharif and Muhammad Sharif had pronounced Talaq thrice at a stretch. The pronouncement of Talaq and the execution of Talaqnama was witnessed by two persons who had appeared at the trial in defence and verified that fact.
8. Muhammad Sharif complainant while appearing as P.W.1 had stated during cross-examination that he had lodged the F.I.R. On third day of the occurrence i,e, the date on which alleged Siddique had taken away Mst. Zohran. Zulfiqar P.W.2 had stated during cross-examination that Sharif had got the case registered after 14/15 days of the occurrence i,e, the taking away of Mst. Zohran by Muhammad Siddique.
' F.I.R. Was registered on 25-2-1991. The Talaqnama was executed on 11-6-1989. Even if the statement of P.W.2 is given preference the appellants were seen boarding bus together 14/15 days before 25-2-1991 which means they were seen together about eight months after the divorce deed was executed.
9. The appellants while making statements under section 342, Cr.P.C. Had stated that they had married on completion of Iddat, period after Talaq. This being the position there appears to be considerable force in the arguments of the learned counsel for the appellants that the deed of Talaq executed on 11-6-1989 and three Talaqs given by the complainant at a stretch on that day had fully and clearly dissolved marriage between the complainant and Mst. Zohran w,e,f, the same day and that, even, if, the complainant after having given notice to the Chairman, Union Council had withdrawn the same before the expiry of 90 days that did not alter the legal position of the marriage having been dissolved on 11-6-1989. That being so the appellants cannot be held liable of having committed Zina, nor can Siddique be held liable for having committed offence under section 16 of the said Ordinance. This appeal is, therefore, allowed. The appellants are acquitted.
They are on bail. The sureties stand discharged.