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---Ss. 10(2) & 16--Defence version--Valid marriage after divorce from previous husband--Divorce deed allegedly executed when husband was not in Pakistan--Husband appearing as witness and categorically denying execution of divorce deed--Entries in passport and visa showing his departure from Pakistan two days earlier than execution of divorce deed--Handwriting Expert deposing that signatures on divorce deed were not those of husband--Opportunity to cross-examine witness afforded but not availed--Accused also filing suit for dissolution of marriage- Accused admittedly married with each other and living as husband and wife--Held, accused were living in adultery during subsistence of valid marriage between accused and her first husband and were found rightly convicted by Trial Court under S. 10(2).

---Ss. 10(2) & 16--Sentence, enhancement of--Zina liable to Tazir- Sentence of 5 years' R.I. and fine of Rs2,000 each under S.10(2) considered proper but sentence of whipping of 10 stripes; found violative of mandatory provisions and enhanced to 30 stripes in circumstances.

Mehar Ghulam Ali Mubashar for Appellants (in Criminal Appeal No. 267/1, of 1986).

Malik Muhammad Rashid Awan for Petitioner (in Criminal Revision No. 113/1, of 1986).

Mian Nusrat Ullah for the State.

Date of hearing: 22nd December, 1986.

Mst. Nasim Akhtar daughter of Abdul Latif, aged 30 years and Mukhtar Ahmad son of Fazal Muhammad, aged 28 years, residents of Old Karkhana, Chak Jhumra in District Faisalabad were tried by Mr. Muhammad Afzal Sohail, the learned Sessions Judge, Faisalabad under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) on the allegations that on the day of Eid-ul-Fitr before March, 1980, Mukhtar Ahmad, accused enticed away Mst. Nasim Akhtar With the intention that she may have illicit intercourse with him and under section 10(2) of the said Ordinance on the allegations that both Mukhtar Ahmad and Nasim Akhtar, accused after the said day had been committing Zina with each other. Vide the impugned judgment, the learned trial Court acquitted Mukhtar Ahmad, accused of the charge under section 16 of the said Ordinance holding that no offence under the mentioned provisions of law was made out against him as Mst. Nasim Akhtar had eloped with him and there was no question of enticing her away. However, by the same judgment the learned trial Court convicted both the accused under section 10(2) of the said Ordinance and sentenced each of the accused to five years' R.I., whipping numbering ten stripes and a fine of Rs.2,000. In default of payment of fine, each of the accused was to undergo R.I. for six months.

2. Being aggrieved by the said judgment, both the convicts have preferred Criminal Appeal No. 267/1, of 1986 against their conviction and sentences on the grounds mentioned in detailed in the memorandum of appeal.

3. Mst. Sharifan Bibi, mother of Mst. Nasim Akhtar, complainant this case, has also brought a Revision Petition for enhancement of the sentences awarded to the accused by the learned trial Court. It was prayed that in view of the peculiar circumstances of the case full sentence as provided under section 10(2) of the said Ordinance should have been awarded and that Mukhtar Ahmad, accused should also have been convicted under section 16 of the said Ordinance.

4. We propose to dispose of both the Criminal Appeal No. 267/1, of 1986 (Mst. Nasim Akhtar etc. v. the State) and Criminal Revision Petition No. 113/1, of 1986 (Mst. Sharifan v. The State and two others) by this judgment.

5. On the report of Mst. Sharifan, wife of Abdul Latif and mother of Mst. Nasim Akhtar, appellant, a case was registered in Police Station Chak Jhumra vide F.I.R. No. 74, dated 25-3-1980 against the accused under the mentioned provisions of law. In the report so lodged, it was stated by Mst. Sharifan Bibi that her daughter Mst. Nasim Akhtar who was marred to one Hafiz Abdul Qayyum, a resident of Karachi City had strained relations with her husband. She left Karachi alongwith Fahim Iqbal, her son, aged 4/5 years and came to the house of the complainant at Chak Jhumra. Meanwhile she developed illicit relations with Mukhtar Ahmad, accused and on the day of Eid-ul-Fitr at 4-00 p.m. in the year 1980, Mukhtar Ahmad, accused came to the house of complainant in her absence and took away Mst. Nasim Akhtar with him. It was stated in the F.I.R. that while leaving the house the accused took some clothes and ornaments with them.

6. After the usual investigation, a complete challan was put for trial against the accused in the Court of Azad Muhammad Awan, the then Additional Sessions Judge, Faisalabad. In order to prove the charge against the accused, the prosecution examined Mst. Sharifan Bibi (P.W.1), Abdul Razzaq son of Muhammad Hanif (P.W.2), Muhammad Anwar son of Jan Khan (P.W.3), Gul Muhammad, Reader to D.S.P. Jaranwala (P.W.4), Nazir Din son of Muhammad Din (P.W.5), Rab Nawaz, S.I., Police Station, Dijkot (P.W.6) and Abdul Hamid Khan, Inspector (P.W.7). The prosecution closed its case on 22-10-1983 without recording the statement of Hafiz Abdul Qayyum, husband of Mst. Nasim Akhtar for the reasons that the said witness had already left for Saudi Arabia and was not available.

7. The accused were examined who took the plea that Mst. Nasim Akhtar had been divorced by her husband, Hafiz Abdul Qayyum vide divorce deed (EXh.P.B.) and after obtaining the divorce she married her co-accused, Mukhtar Ahmad.

8. After discussing the evidence so produced by the prosecution and hearing the learned counsel for the parties, the learned Additional Sessions Judge acquitted both the accused by giving them the benefit of doubt vide his judgment, dated 30-10-1984.

9. It transpires from the record that a Criminal Revision was filed by Mst. Sharifan, complainant against the order of acquittal before this Court. This Revision Petition No. 4/I of 1984 was accepted by a Division Bench of this Court vide its order, dated 28-4-1985 with the following observations:

"In view of the above facts it appears necessary to remand the case to the trial Court to record further evidence in respect of genuineness of the divorce deed (Exh.P.B.). Since Hafiz Abdul Qayyum is present and is available for evidence, he shall be examined by the trial Court and also take the specimen signatures of his as well as specimen signatures of respondent Mukhtar Ahmad and send the original divorce deed alongwith specimen signatures of the said Abdul Qayyum and Mukhtar Ahmad to the handwriting expert for comparison and report. Consequently the Revision Petition is allowed and the case is remanded to the Sessions Judge, Faisalabad; to record the evidence himself as directed above and decide the case The parties and Hafiz Abdul Qayyum are directed to attend the Court of Sessions Judge, Faisalabad on the 15th May, 1985. The trial Court may call upon the two respondent to furnish fresh bail bonds for their appearance in the Court during the fresh trial. The case should be disposed of as early as possible:'

10. After the remand, the case was heard by the learned Sessions Judge, Faisalabad. He recorded the statement of Hafiz Abdul Qayyum and also summoned one Muhammad Ashraf Malik Director, Forensic Science Laboratory according to the directions given in the remand order. The accused were again examined under section 342, Cr.P.C. wherein they took the same plea that after obtaining a valid divorce from Abdul Qayyum, the first husband of Mst. Nasim Akhtar, they have entered into a valid marriage.

11. After hearing the learned counsel for the parties and going through the record the learned trial Court acquitted Mukhtar Ahmad, appellant of offence under section 16 of the said Ordinance but convicted both the appellants under section 10(2) of the said Ordinance by his impugned judgment.

12. We heard the learned counsel for the parties and have also gone through the record with their assistance.

13. The only controversy in the instant case is whether Mst. Nasim Akhtar who was admittedly the wife of Hafiz Abdul Qayyum (P.W.8) was, in tact, divorced by her husband, the said Abdul Qayyum and after obtaining such a divorce she had entered into a valid marriage with the appellant through a Nikahnama (Exh.D.A.). Hafiz Abdul Qayyum (P.W.8) has categorically denied the execution of the divorce deed (Exh.P.B.) and has stated that the divorce deed so produced was forged one. According to him, he left for Saudi Arabia on 17-6-1979 whereas the alleged deed was shown executed on 19-6-1979. He denied having executed or signed the deed in question purported to be executed when he was not in Pakistan. The visa and entries in his passport showed that he had left for Saudi Arabia on pith June, 1979 i.e. two days prior to the date of the divorce deed. This divorce deed was sent to the Forensic Science Laboratory, Lahore and the report in that connection is clear on the point that the document (Exh.P.B.) was not bearing the signatures of Hafiz Abdul Qayyum (P.W.8)). In support of the report, Muhammad Ashraf Malik, Director, Forensic Science Laboratory, Lahore was examined as P.W.9 who has clearly stated that the questioned Urdu signatures (Exh.P.B./1) on Exh.P.B. was forged and did not bear identical characteristics with the specimens of Abdul Qayyum (Exh.C.W.9/1). It is evident from the record that a proper opportunity was afforded to the accused to cross-examine this witness but in spite of the opportunity so given the learned counsel appearing on behalf of the accused did not put a single question to him. It has thus been fully established that the divorce deed (Exh.P.B.) produced by the appellants in their defence about the alleged divorce by Hafiz Abdul Qayyum (P.W.8) was a forged document. Perusal of the deed further reveals that even the stamp paper for this deed was purchased in the name of Hafiz Abdul Qayyum on 19-6-1979 when according to the documentary evidence the alleged executant had already left the country for Saudi Arabia. It becomes thus quite clear that a valid marriage subsisted between Mst. Nasim Akhtar, appellant and Hafiz Abdul Qayyum (P.W.8) on 28-9 1979 when the Nikah was allegedly performed between the two appellants.

14. Perusal of the record further reveals that a suit for the dissolution of marriage was also filed in the Court of learned Family Judge, Faislaabad by Mst. Nasim Akhtar against her husband, Hafiz Abdul Qayyum which was subsequently dismissed in default. This conduct of Mst. Nasim Akhtar further shows that the alleged divorce deed was never considered as a genuine document. Since the appellants have admitted that they had married each other and were living as husband and wife and since the divorce in question has not been proved they were obviously living in adultery and were committing Zina with each other. The charge under section 10(2) of the said Ordinance was thus fully established against them and they were thus, rightly convicted by the learned trial Court for the said offence.

15. As regard the enhancement of sentence for which a prayer has been made in the connected revision petition, it is laid down under the mentioned provisions of law that a person found guilty of Zina liable to Tazir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes, and shall B also be liable to fine. We feel that the substantive sentence as well as the sentence of fine awarded to the appellants appear quite reasonable in the circumstances of the case but the sentence of whipping awarded in the case being contrary to the mandatory provision of law is not in accordance with law. We accordingly enhance the sentence of whipping by increasing the number of stripes to thirty. The Revision Petition to that extent is partly accepted.

16. So far the appeal filed by the appellants is concerned, we find no merit in it which is dismissed accordingly.

S.A./334/F.Sh.C. Appeal dismissed.

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