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Criminal Petition for Leave to Appeal No. 16-R(S) of 1984, decided on 27th October, 1984.

(From the judgment and order of the Federal Shariat Court, dated 19-2-1984 in Criminal Appeal No. 170/1 of 1983).

---Art. 203-F--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(2)--Allegation of Zina--Several persons appeared against accused persons to depose that they saw them committing sexual inter course-,Plea of valid marriage by accused person --Nikahnama and its scribe who also performed said Nikah before occurrence were produced- Trial Court disbelieving plea of valid marriage, convicted accused persons under S. 10(2) of Ordinance, 1979--Such findings of fact reversed by Federal Shariat Court and accused were acquitted--Leave to appeal- Contention that (i) proper procedure was not followed to solemnise Nikah which was relied by accused; (ii) that previous wife of male accused was not examined to show that she had consented to accused's second marriage; (iii) that Nikah was registered in a manner contrary to one prescribed by Family Laws Ordinance (VIII of 1961)--Petitioner failing to show either that Nikahnama was fake or a forgery nor did he succeed. in shaking credit of Nikah Khawan who appeared in defence- Held, accused might have committed some irregularity in solemnisation of Nikah for which they might be punishable under relevant law but no defect having been established or even pointed out (in so far as its performance in accordance with Muslim Law is concerned), accused could not be punished for Zina under Ordinance, 1979--No case having been made out for interference, leave to appeal refused.

M. Ayub Bokhari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Ch. Ghulam Ahmad, Advocate Supreme Court for the State (Respondent No.2).

Date of hearing: 27th October, 1984.

This petition for leave to appeal calls in question judgment dated 19-2-1984 of the Federal Shariat Court;. whereby respondents' (Nos. 1 and 2) appeal against conviction under section 10(2) of the Offence of Zina (Enforce ment of Hudood) Ordinance (VII of 1979) was set aside and they were acquitted.

Several persons appeared against the respondents to depose that they saw them committing sexual intercourse. The defence version was of valid marriage, in support whereof of Nikahnama and its scribe who also performed this Nikah before the occurrence were produced. The learned trial Court disbelieved the defence plea and relying on the prosecution evidence convicted the respondent under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). These findings of fact were reversed 'by the Federal Shariat Court acquitting the respondent. Therefore, this petition for leave to appeal against the acquittal.

Learned counsel for the petitioner raised various arguments to show that proper procedure was not followed to solemnise the Nikah, relied upon by the defence--that Respondent No.l's previous wife was not examined to show that she had consented to his 2nd marriage and that the Nikah was registered in a manner contrary to the one prescribed by the Family Laws Ordinance. He however, was unable to show either that the Nikahnama was fake or a forgery nor did he succeed in shaking the credit of the Nikah Khawan who appeared in defence. The concerned persons might have committed some irregularity in they solemnisation of the Nikah for which they might be punishable under the relevant law but no defect having been established or even pointed out (in so far as its performance in accordance with the Muslim law is concerned) the accused could not be punished for Zina under the Hudood Law. That being so, no case has been made out for interference with the impugned judgment which is otherwise also well-reasoned. This petition is dismissed.

M . Z . M . Petition dismissed.

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