' Appellants Mst. Manzooran Bibi and Muhammad Ramzan filed these two appeals through Superintendent, Central Prison, Karachi challenging their conviction by Additional Sessions Judge (East), Judicial Complex, Karachi. They were tried and convicted for the offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to undergo R.I. For four years, in addition to payment of fine of Rs,2,000 each, in case of default of payment of fine, they had to further suffer R.I. For three months.
2. The appellants being pauper were provided services of the counsel on State expenses by, the office of this Court.
3. Today these two appeals were heard by me and the learned counsels appearing for the two appellants as well as the learned counsel for the State were heard in detail.
4. The facts of the case in short are that on 10-6-1992 complainant Imam Din lodged the report at Police Station New Karachi alleging inter alia that he originally belonged to District Vehari in Punjab and was working at Karachi doing business of fruit selling. He alleged that on 10-6-1992 at about 1- 00 p.m. Mst Noor Bibi who was known to the family and used to visit their house came to his wife Mst. Manzooran (the appellant in Jail Criminal Appeal No,13/K of 2002) and asked Mst. Manzooran to accompany her to the Bazar. Mst. Manzooran, therefore, went alongwith Mst. Noor Bibi to the Bazar alongwith her minor daughter and thereafter never returned. Imam Din, the husband of Mst.
Manzooran made enquiry and search for Mst. Manzooran. P.W. Bashir Ahmad and Nazir Ahmed (not examined during trial) met him. They informed him that they had seen Mst. Noor Bibi alongwith appellant Mst. Manzooran and her minor daughter boarding a taxi alongwith appellant Ramzan.
Such F.I.R. Of Imam Din having been registered was investigated, as a result of which Mst. Noor Bibi was arrested but later on she absconded. Subsequently, after a period of about 8/9 years the present appellants Ramzan and Manzooran Bibi were also arrested by the police and they were challaned to stand their trial for the offence under section 10(2) of the Ordinance. Presumably they were charged because the police could not arrest them for a long time of 8/9 years and the appellants Mst. Manzooran as well as Ramzan came out with the defence before the police that actually they had contracted Nikah on 13-7-2000 after Mst. Manzooran got her marriage with Imam Din dissolved through Senior Civil Judge-I, Quetta by filing Family Suit No,11 of 2000. Certified true copy of the judgment dated 19-6-2000 was produced by the appellants before the police as well as before the trial Court. The relevant paragraph of the judgment reads as under:- "The suit was registered and notices were issued to the defendant (Imam Din) but the notices were not served. Publication was made in the daily newspapers but the defendant did not appear despite publication. Hence case proceeded ex parte. The plaintiff filed ex parte affidavits in support of the claim. Thus relying upon ex parte evidence which is of course unrebutted, the suit of the plaintiff is decreed and the marriage tie between the parties is dissolved on the ground of Khula' ."
(Sd.) Rashid Mehmood.
5. The learned trial Judge examined complainant Imam Din as P.W.1 to whom in cross-examination Mst. Manzooran suggested that she had obtained the Khula' from him through a Court at Quetta and that she was not his wife. In the reply complainant Imam Din stated that he had absolutely no knowledge about obtaining of Khula' by her. He further stated that since he had no knowledge of the Khula' proceedings, he was the husband of appellant Mst. Manzooran.
6. It signifies that Imam Din after lodging the F.I.R. Was living at Karachi while Mst. Manzooran had gone to Quetta where she ultimately got the judgment from the Court for the dissolution of her marriage and it is thereafter that the Nikahnama between her and appellant Muhammad Ramzan took place. The date of the judgment is 19-6-2000 while the date of performance of Nikah/marriage between the appellants is 13-7-2000. Complainant Imam Din in his evidence at no place did point out that earlier to their Nikah, the appellants were living as husband and wife.
' Therefore, merely on presumption it is hard to say that the appellants committed Zina-bil-Raza before the performance of their Nikah and marriage. The other evidence on record of the trial Court was P.W. Allah Ditta who claimed that he was very close relative of Imam Din. He was examined in the Court after 8/9 years of the alleged incident of going away of Mst. Manzooran in a taxi. He categorically stated that Mst. Noor Bibi, the mother of appellant Ramzan was seen going away with appellant Mst. Manzooran and her daughter to Meena Bazar in a taxi. This fact was told to Allah Ditta by P.W. Bashir when Allah Ditta was in search of the appellant Mst. Manzooran near UP Morr.
He also in his deposition did not allege anything about living of the two appellants as husband and wife.
7. P.W. Muhammad Bashir was the next witness examined by the prosecution who only stated that on 10-6-1992 he had seen appellants Mst. Manzooran, Ramzan and absconding accused Mst. Noor Bibi going in a taxi. A young girl was also in company of Mst. Manzooran. He thought that they were all going to their house but in the evening complainant was searching his wife and to him Muhammad Bashir narrated the above facts. This witness also did not say anything about living of the appellants together at any time before their Nikah. Statement of P.W. Muhammad Bashir was recorded after more than nine years of the alleged incident of going away of Mst. Manzooran and it was recorded on 8-11-20Q1. It is surprising that even after nine years P.W. Muhammad Bashir could remember the date of incident.
8. The remaining witnesses examined were the police men who had absolutely no personal knowledge whatsoever about the living of the appellants together and consequently it can be safely stated that no evidence whatsoever was available before the trial Court to come to the conclusion that the appellants had committed Zina-bil-Raza. In their statements under section 342, Cr.P.C. Mst. Manzooran and Ramzan took the stand that they were innocent. They had married each other and after their Nikah at Quetta they were living as husband and wife. They produced copies of Nikahnama with the seal of the Nikah Registrar, an attested civil marriage deed signed by them in presence of two witnesses and attested by an Oath Commissioner/Advocate. They also produced certified true copy of the judgment, dated 19-6-2000 passed by Family Judge, Quetta dissolving and breaking the marriage tie between the complainant and Mst. Manzooran, a copy of the decree dated 19-6-2000 was also produced. They did not examine themselves on oath and did not produce any witness in defence.
9. The charge in this case was framed for the offence under sections 10(2) and 16 of the Ordinance but in my view neither of such offence was proved by evidence and consequently I hold that the judgment of the learned trial Court was based on presumption that the appellants had committed Zina-bil-Raza and was not based on evidence. Therefore, the impugned judgment cannot be sustained.
10. It is worthwhile to comment that it came in evidence that there was allegation that the two appellants in these appeals were making their livelihood by begging and that after the marriage they were living in Quetta and that the complainant who himself was a beggar had remained silent for 8/9 years and that for that period how appellant Mst. Manzooran was living, he made no statement. He also did not care to know how his young minor daughter was living. Therefore, at this stage it shall not be proper to maintain the conviction of the appellants. There is no evidence on record about the pregnancy of appellant Mst. Manzooran during the period she had left the house of the complainant and, therefore, in my view, there was no evidence of indulgence in Zina by any of the appellants. The result is that the appeal is allowed and the impugned judgment is set aside.
The appellants are acquitted of the charge. They are directed to be released forthwith if not wanted in any other case.