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Criminal Appeal No. 94/K of 1986, decided on 18th December, 1986.
‑‑‑Ss. 342 & 364‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S,.10(2)‑‑Plea of divorce, proof of‑‑Accused allegedly marrying each other during subsistence of first marriage of lady accused‑‑Divorce from first husband pleaded by accused‑‑Both accused embracing Islam, contracted Nikah according to Islam and living as husband and wife since then‑‑First husband not examined as witness to prove or disprove plea of divorce‑‑Statement under S.342, Cr.P.C. not bearing certificate contemplated by S.364, Cr.P.C.‑‑Case remanded to Trial Court ,for retrial to allow parties to adduce evidence to prove plea of divorce‑‑Court might call any person as Court‑witness for ascertaining truth of plea .of divorce.
Sardar Muhammad Ishaq for Appellants.
A.I. Qarni for the State.
Date of hearing: 18th December, 1986.
.‑‑The above two appellants have been convicted by Additional Sessions Judge (Hudood), Karachi East, by his judgment, dated 25‑9‑1986 for offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and ‑sentenced as under:‑----
(i) appellant Salamat Ali to suffer R.I. for five years, whipping numbering ten stripes and fine of Rs.1,000 or in default of payment of fine to further undergo R.I. for three months.
(ii) appellant Mst. Allah Rakhi to suffer R.I. for four years, whipping numbering five stripes and to pay fine of Rs.1,000 or in default of payment of fine to further undergo R.I. for three months.
Both the appellants have challenged their above convictions a sentences through this joint appeal.
2. The allegation against the appellants, according to the F.I.R. lodged by Bashir Masih father of Mst. Allah Rakhi appellant, was that Mst. Allah Rakhi was wife of Ilyas Masih and that during the subsistence of that marriage, she contracted marriage with appellant Salamat Ali and started residing with him as his wife. Such report was lodged by[ Bashir Masih on 21‑6‑1985 at Police Station Korangi. The F.I.R. was recorded by P.W.3 Ghulam Kazim Soomro, S.H.O.
3. The plea of appellant Mst. Allah Rakhi alias Nasreen was that she has been divorced by her husband Ilyas Masih and, thereafter, she contracted Nikah with Salamat Ali appellant. She further state that they both embraced Islam and then contracted Nikah according to Islam also and have been living as husband and wife ever‑since. Same is the statement of appellant Salamat Ali.
4. In this case we find that most important witness Ilyas Masih has not been examined as a witness. He was not even examined by the police under section 161, Cr.P.C. It also transpires that Ilyas Masih had contracted another marriage according to the Christian right, which gave rise to the presumption that he might have divorced Mst. Allah Rakhi appellant.
5. However, we feel that the trial Court should have examined Ilyas Masih as a Court‑witness to ascertain whether the plea of divorce raised by Mst. Allah Rakhi was correct. It was duty of the trial Court to have examined all the necessary witnesses as Court‑witnesses whose evidence is necessary to determine the truth of the allegations in the averments made by the parties regarding matrimonial connection, as laid down by the Supreme Court in the case of Muhammad Azam v. Muhammad Iqbal and another P L D 1984 SC 95. Another illegality which we find in this case is that statements of the appellants recorded under section 342, Cr.P.C. did not bear certificate as contemplated by section 364, Cr.P.C.
5. We, therefore, set aside the conviction and sentences and remand the case to the trial Court to allow the parties to lead further evidence to prove the plea of divorce. The Court may call any witness as Court‑witness under section 540, Cr.P.C. for the purpose of ascertaining the truth of the plea of divorce.
7. During the trial both the appellants had been on bail. They were remanded to the custody after their conviction. In view of the plea of divorce and marriage according to the Muslim Laws alleged to have been contracted by the appellants, we admit both the appellants to bail on their furnishing bail bonds in the amount of Rs.20,000 each and personal bond in the like amount to the satisfaction of the trial Court.
S. A. Case remanded.
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