1. ' This is an application under section 426, Cr.P.C. For suspension of sentence pending appeal and release of appellants on bail on their own bond.
2. ' The appellants have been convicted by the Court of Additional Sessions Judge, Naushahro Feroze on 2-9-1999 under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and they have been sentenced to R.I. For 4 years and 15 stripes each. Appellant Mahboob has also been directed to pay fine of Rs,15,000 or in default to undergo R.I. For 3 months. Benefit of section 382-B, Cr.P.C. Has been extended to both of the appellants.
3. ' Mr. Sardar Akbar F. Ujjan, Advocate for the appellants, has contended that according to the plea of defence a Nikah existed between the two appellants on the date of the alleged occurrence i,e, 20- 11-1997, and therefore, being spouses, the appellants/applicants are to be provided relief under section 426, Cr.P.C. He has made a reference to the statement of appellant Mahboob Ali under section 342, Cr.P.C. And specially to the replies to questions Nos.5, 6 and 7. All these questions and replies are reproduced here as under:-- ' Q. It is alleged that you on 20-11-1997 entered in the house of accused Mst. Jannat with the intention to commit an offence punishable under section 451, P.P.C., what you have to say?
4. ' Ans. No Sir, I had gone there as she is my wife.
5. ' Q. It is alleged that you were caught hold by the P.Ws. While committing Zina with knowledge that you were not legally married, what you have to say?
6. ' Ans. It is not a fact. She is my wedded wife.
7. ' Q. It has come on record through medical evidence of M.O. And W.M.O. That semen was detected on your clothes. They have opined that sexual intercourse has been committed, what you have to say?
8. ' Ans. We are married with each other.
9. ' Appellant Mst. Janat, in her statement under section 342, Cr.P.C. Has also repeated the replies to the questions as per the pro forma of appellant Mahboob Ali. Both the appellants have refrained from examining themselves on oath under section 340(2), Cr.P.C. However, they have produced two witnesses in their defence. Jameel Ahmed (D.W.1) has deposed that appellant Mst. Janat is his sister and about one year and 9 months prior to the deposition, the Nikah between the two appellants was performed in his presence. He was shown as Advocate/ Wakeel in the Nikah from the side of the bride. The Nikah was performed with the consent of his sister and he signed the same. He has exhibited Nikahnama as Exh.P.15/A. During cross he has admitted that the Nikah was recited in their house in the Town of Padidan by Molvi Rajab but he does not know about the said Molvi Rajab. He does not remember the date and time of the Nikah. At the time of Nikah other family members including the complainant, being a brother of appellant Mst. Janat were not present in the house. He has again admitted that the Nikah was held in the house of Mst. Janat where he resided with her. He has further admitted that the Nikahnama was written and signed at Karachi and then he said that L.T.I. Was also obtained at Karachi. The Registrar of Nikah namely Din Muhammad had not come at Karachi. Rajab Ali has also not gone to Karachi on day when Nikahnama was signed by the appellants at Karachi. He has further admitted that he did not remember the names of the witnesses of Nikah nor he remembers the amount of Haq Mehr (dower). He has further admitted that after registration of the present case neither he had gone to police station nor informed any person about the Nikah between the appellants. Another witness of defence namely Khalid Hussain (D.W.2) has deposed that the Nikah between the appellants was performed on 15-8-1997 and he was one of the witnesses of Nikah. According to him Nikahnama Exh.15/A, bears his L.T.I. As well as signature. He has further deposed that Nikahnama bears his only one L.T.I. And one signature. When confronted during cross with the Nikahnama Exh.15/A, he has admitted that the Nikahnama bears his two signatures and two L.T.Is. He has further admitted that the Nikah was performed at Padidan in a house which was said to be one of the friends of the parties but was not the house of appellant Mst. Janat. According to him Nikah was performed by a Maulvi whose name he does not remember, He has further admitted that his signatures and L.T.I.
10. Were obtained at Padidan and not at Karachi. He has further admitted that he cannot say about the signatures and L.T.Is. Of other witnesses of Nikah as to when and where these were obtained as he was in hurry, and therefore, after signing the Nikahnama he had left the said house. He has further admitted that the signatures of bride and bride-groom were obtained in his presence.
11. ' In view of this conflicting position and clear discrepancies between the two witnesses for defence, I am of the considered view that no reason exists for the suspension of the execution of the sentence or order appealed against and for the release of the appellants on bail. However, these remarks shall not affect the regular hearing of this appeal which should be fixed as early as possible.
12. ' The learned counsel for the State Mrs. Qamar-un-Nisa Hameed Qureshi has opposed this application vehemently and according to her even the statutory period for grant of relief as envisaged in subsection (1-A) of section 426, Cr.P.C. Has not yet become available to the appellants.
13. ' In view of the above discussion this application is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.