' Riaz Hussain and Mst. Akhtar Begum alias Akhtari Begum, both appellants herein, were convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by VIth Additional Sessions Judge, South Karachi by judgment, dated 24-4-1994 and each of them was sentenced to undergo rigorous imprisonment for 4 years, to suffer 15 stripes and to pay a fine of Rs,10,000 or in default to undergo simple imprisonment for 6 months. Both the convicts have challenged their conviction and sentence by the appeal in hand.
2. The facts, relevant for the purpose of this appeal, which could be gleaned from the contents of the F.I.R. And the evidence, are very simple. Complainant Muhammad Amin was married to Mst.
Akhtari Begum appellant No,2 herein, more than 35 years ago. However, their relations became strained subsequently. On 4-12-1990 the complainant submitted a written complaint in Police Station Arambagh, Karachi wherein he disclosed that his wife Mst. Akhtari Begum had disappeared from his house without his permission and on inquiries he had come to know that she had contracted a second marriage with her co-accused Riaz Hussain whereas he (complainant) had not divorced her.
3. Both the accused were arrested and they revealed during investigation that the complainant had divorced Mst. Akhtari Begum and thereafter, she had married her co-accused Riaz Hussain.
The factum of the second marriage of Mst. Akhtari Begum with co-accused Riaz Hussain had been established by positive evidence. In so far as the question of divorce to her by the complainant was concerned, a defence witness Muhammad Irfan was produced who deposed on oath that he was doing some repair work of the refrigerator in the house of one Mst. Nafeesa Begum where Mst.
Akhtari Begum was staying and her husband Muhammad Ameen had pronounced Talaq to her and had also given a written Talaqnama.
4. The simple question which had arisen for determination was whether appellant Mst. Akhtari Begum was divorced by the complainant before she entered into second marriage with her co- accused Riaz Hussain. In this connection there is the testimony of D.W.1 Muhammad Irfan who clearly deposed on oath that in his presence complainant Muhammad Amin had informed his wife that he was divorcing her and also handed over to her a written Talaqnama. This testimony of the defence witness would clearly indicate that the complainant had orally divorced appellant Mst.
Akhtari Begum Wald had also given to her written Talaq in confirmation of the oral divorce. After taking into consideration all the aforesaid circumstances I have come to the conclusion that complainant Muhammad Ameen had pronounced oral Talaq to his wife appellant Mst. Akhtari Begum.
5. It was contended by the learned counsel for the State that since no proceedings for arbitration had taken place after pronouncement of Talaq, the divorce had not attained finality and in support of that contention he relied upon a judgment of the Supreme Court of Pakistan in the case of Abdul Mannan v. Safuran Nessa 1976 SCMR 845 wherein it was held that divorce was not effected as no notice for divorce was given to Chairman, Local Union Council. The learned defence counsel also brought to my notice the case of Inamul Islam v. Mst. Hussain Bano and 4 others PLD 1976 Lah. 1466 wherein it was held that Talaq could not be effective even after 90 days because after pronouncement of oral Talaq in accordance with Muslim Law no notice was served on Chairman as laid down in section 7 of the Muslim Family Laws Ordinance, 1961. However, in this connection I would also refer to the cases of Allah Dad v. Mukhtar and another 1992 SCM R 1273 and Mst. Zahida Shaheen and another v. The State and another 1994 SCM R 2098 wherein it was held that failure to send a notice of Talaq to Chairman of Local Council did not render the divorce ineffective in Shariah. Taking advantage of the latter two cases very recently decided by the Supreme Court of Pakistan I will hold that appellant Mst. Akhtari Begum had been validly divorced by the complainant before she entered into second marriage with her co-accused Riaz Hussain and as such none of them had committed any offence.
6. Consequently the appeal is accepted. The conviction and sentence of both the appellants Riaz Hussain son of Amanat Hussain and Mst. Akhtar Begum alias Akhtari Begum daughter of Barkat Ali recorded on 24-4-1994 by the learned VIth Additional Sessions Judge, South Karachi are set aside and they are acquitted of the offence for which they were convicted and sentenced. They are present on bail. Their bail bonds stand discharged. .