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Criminal Petition for Leave to Appeal No. 24(S)/R of 1986, decided on 27th July, 1986.

(From the judgment of the Federal Shariat Court, Islamabad, dated 3‑4‑1986 in Criminal Appeal No. 7/I of 1986).

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), 5.10(2)‑‑Zina‑‑Conviction challenged on plea of invalid marriage‑‑Leave granted to examine contention that unless there was mens rea notwithstanding fact that petitioner's marriage inter se might not be strictly valid, they could not be convicted as element of wilfulness was lacking.

Muhammad Azam v. Muhammad Iqbal and others P L D 1984 SC 95; Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 S C M R 583; Ghulam Shabir Shah v. The State 1983 S C M R 942; Muhammad Iqbal v. The State P L D 1983 FSC 9; Mian Dad and another v. The State P L D 1983 FSC 518; Arif Hussain and Azra Parveen v. The State P L D 1982 FSC 42; Muhammad Arif v. The State P L D 1982 FSC 292; Iftikhar Nazir Ahmad Khan and others v. Ghulam Kibria and others P L D 1968 Lah. 587 and Ashfaq Ahmad and another v. The State P L D 1985 F S C 126 ref.

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 4 & 10(2)‑‑Zina‑‑Definition of‑‑Conviction challenged on plea of invalid marriage‑‑Contention raised that necessary two conditions for proof of Zina in addition to sexual intercourse not satisfied in the case viz: (i) that there should not be any valid marriage and (ii) that sexual intercourse should be wilful‑‑Leave granted to examine plea that as element of wilfulness for commission of Zina was lacking in present case, petitioners were not guilty under S.10(2) of Ordinance (VII of 1979).

Ashfaq Ahmad and another v. The State P L D 1985 FSC 126 ref.

‑‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑Sentence‑‑Petitioners claiming invalid marriage, convicted and sentenced‑‑Leave granted to consider plea of reduction in sentence on ground that in such cases Federal Shariat Court had been awarding sentence of five years or less while in present case a sentence of ten years' rigorous imprisonment was upheld.

Hafiz S.A. Rahman, Advocate Supreme Court and Khan Imtiaz Muhammad Khan Advocate‑on‑Record (absent) for Petitioners.

Nemo for the State.

Date of hearing: 27th July, 1986.

Leave to appeal has been sought from judgment, dated 3‑4‑1986 of the Federal Shariat Court; whereby the petitioners' appeal from conviction under sections 10(2) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), was partly allowed, conviction under section 11 was set aside while that under section 10(2) with a sentence of 10 years' R.I. , 15 stripes and a fine of Rs.5,000 each, was upheld.

The prosecution case is that Samandar Khan petitioner was married to Mst. Niaz Parveen, the elder sister of Mst. Irshad Begum petitioner No. 2. There were four issues from this wedlock which subsisted for 7/8 years. Samandar Khan and Irshad Begum, however, notwithstanding their delicate relationship fell in love with each other and fled away to the Tribal Area of Bajore Agency and allegedly entered into a marriage there. Having stayed away for about 4 months, they returned to their native place in District Mardan. In the meanwhile, the brother of Mst. Irshad Begum had lodged a report against them for offences under the Hudood Ordinance. They were thus arrested. During the investigation both of them made so‑called confessional statements before a Magistrate under section 164, Cr.P.C. in which a definite plea of valid marriage was taken by them. During the trial evidence was led to show that Samandar Khan was married to Mst. Niaz Parveen and that without divorcing her he entered into an illicit relationship with her younger sister Mst. Irshad Begum after having taken her away to the Tribal Area and thus both of them had committed offences under sections 10(2) and 11 of the Ordinance. The learned trial Judge convicted both of them for these offences.

On appeal, in the Federal Shariat Court it was held that although there was not sufficient evidence to show that Samandar petitioner had divorced Mst. Niaz Parveen prior to the incident of elopement, yet even if it be assumed that the divorce took place as alleged by the accused, the second marriage between them having taken place within the period of Iddat of Mst. Niaz Parveen, it was invalid. Reference was also made to case‑law in support of this reposition as also in support of the proposition that the divorce to Mat. Niaz Parveen even if established had not become effective in accordance with the provisions of Muslim Family Laws Ordinance, 1961, therefore, the marriage with Mst. Niaz Parveen subsisted and that being so, the second marriage was invalid. Case law was also cited in this behalf regarding the three‑fold assumption: namely, non‑existence of Talaq to Niaz Parveen; ineffectiveness of the so‑called Talaq to her, and in any case the marriage with Mst. Irshad Begum being during the Iddat of her sister Mst. Niaz Parveen it was invalid, the learned Judges of the Federal Shariat Court upheld the conviction and sentence of the petitioners under section 10(2) of the Ordinance. The petitioners, however, in the circumstances of the case, there being no element of abduction, were acquitted of the charge under section 11 of the Ordinance.

The following cases have been brought to our notice by the learned counsel as also the research staff of the Court in connection with the various points dealt with in the judgment of the Federal Shariat Court:

Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95; Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 S C M R 583; Ghulam Shabir Shah v. The State 1983 S C M R 942; Muhammad Iqbal v. The State P L D 1983 F S C 9; Mian Dad and another v. The State P L D 1983 F S C 518; Arif Hussain and Azra Parveen v. The State P L D 1982 F S C 42; Muhammad Arif v. The State P L D 1982 F S C 292; and Iftikhar Nazir Ahmad Khan and others v. Ghulam Kibria and others P L D 1968 Lah. 587.

Learned counsel for the petitioners relying on another judgment of the Federal Shariat Court, namely, Ashfaq Ahmad and another v.

The State P L D 1985 F S C 126, has contended that unless there is mens rea notwithstanding the fact that the petitioners marriage inter se might not be strictly valid, they could not be convicted under section 10(2). He has also relied on the use of the word "wilfully" in the following definition of Zina in section 4 of the Ordinance: "man and a woman are said to commit Zina if they wilfully have sexual intercourse without being validly married to each other". As contended the argument of the learned counsel is that there are two conditions for proof of Zina in addition to sexual intercourse: one, that there should not be any valid marriage; and two, that the sexual intercourse should be wilful. In this case, according to him, keeping in view all the circumstances of the case including the admissions of the petitioners in their confessions and statements under section 342, Cr.P.C., the element of wilfulness is lacking, therefore, they were not guilty under section 10(2). He has also contended that in cases like the present one, the Federal Shariat Court has been awarding the sentence of 5 years' R.I. or less while in this case a sentence of 10 years' R. I. has been C upheld. Therefore, he has urged for reduction of sentence in case the conviction is upheld by this Court.

The questions raised need examination. We accordingly grant leave to appeal.

M.I. Leave granted.

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