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Criminal Appeal No. 215/1, of 1986, decided on 8th February, 1987.
‑‑‑S. 10(2)‑‑Allegation of abduction and Zina‑‑Plea of marriage by accused‑‑Accused stating that they contracted marriage after female accused had been divorced by her first husband, the complainant and relied on a Talaqnama which was taken in possession by Investigating Officer from the house of male accused when the female accused was recovered‑‑Person who sold stamp paper and also scribed said Talaqnama under the dictation of complainant‑husband was produced who testified thumb‑impression of complainant‑husband both on the Talaqnama and on his register‑‑Investigating Officer, in cross‑examination stated that he had also heard about dispute regarding Talaq during investigation‑ Facts of case showing that there was a dispute about Talaq between complainant and female accused before registration of case against accused persons‑‑Prosecution failed to show that Nikahnama subsisted between the parties viz. complainant and female accused and no Talaq had taken place‑‑Plea taken by accused persons that they were lawfully married, held, stood proved in circumstances‑‑ Conviction and sentence of accused was set aside.
Arif Iqbal Hussain Bhatti for Appellants.
Syed Iftikhar Ali Shah for the State.
Date of hearing: 8th February, 1987.
.‑‑The two appellants were convicted by Mian Faizul Hassan, Additional Sessions Judge, Pakpattan, on the 29th of June, 1986, under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 5 years' R.I., each with whipping numbering ten stripes each and a fine of Rs.2,000. In default of payment they were to suffer 3 months' R.I., further.
2. The occurrence is said to have taken place 5/6 days before lodging of the F.I.R., on the 16th of February, 1984, Shaban, P.W. 1, who claims to be the husband of Mst. Nishan, appellant No. 2, made a complaint which was recorded by Muhammad Mansha, Moharrir Head Constable, P.W. 5, on the 16th of February, 1984. He alleged that he married Mst. Nishan about 12/13 years back and had two sons and a daughter out of the wedlock. Meanwhile, appellant Muhammad Afzal alias Abdur Rahman, who owned a grinding mill developed illicit relations with his wife and abducted her about months back. The Punchayat convened for the purpose, however, got her restored.
3. The P.W.1, complainant went on to say that 5/6 days before the lodging of the F.I.R., he found one morning his wife again missing. He conducted search but after failing lodged the report referred to above. It is stated therein that Muhammad Shaban, P.W. 2 and Siraj, P.W. 3 had told him that they saw the two appellants going towards Pakpattan city. The two appellants were recovered and arrested on the 2nd of February, 1985 from village Jhajrara, 1985. The prosecution then challaned the case and examined 14 witnesses.
4. Out of them Shaban, P.W. 1, the complainant supported his version as given in the F.I.R. Muhammad Shaban, P.W. 2 and Siraj, P.W. 3, stated that they had seen the two appellants going towards Pakpattan City. Murad, P.W. 9 stated that one day he also saw the two appellants and the mother of Muhammad Afzal appellant going on a motor bike towards Sahiwal. Ramzan Ali Shah, S.I., P.W. 11 had raided and searched the house of appellant Muhammad Afzal at Karachi and recovered number of articles including a 'Nikahnama' between the parties and a 'Talaqnama', which had been executed by the complainant against the appellant, Mst. Nishan. All other witnesses are of formal nature and may not be discussed in view of the reasons given hereunder.
5. The appellants in their statements under section 342, Cr.P.C., stated that they contacted marriage after Mst. Nishan had been divorced by the complainant. They relied on 'Talaqnama', which had been recovered by Ramzan Ali Shah, P.W. 11, from the house of Muhammad Afzal at Karachi. They also produced Abdul Hamid Qamar, D.W. 1 as defence witness, who had sold stamp paper and also scribed the 'Talaqnama' under the dictation of Muhammad Shaban, complainant.
6. The learned counsel for the appellants has referred to 'Talaqnama', which is at page 52 of the paper book and states that not only the same has on it the thumb‑impression of the complainant but also the signatures of the two witnesses, one of whom is the present appellant No. 1. He further states that the complainant was confronted with the 'Talaqnama' during cross‑examination but he denied its presence as also execution. He has also referred to the statement of Muhammad Shaban, P.W. 2, who specifically mentioned in cross‑examination that Mst. Nishan and the complainant had been quarrelling with each other and he knew this fact because he was her neighbour. The dispute he stated was regarding the 'Talaq' of Mst. Nishan. Mst. Nishan then left the house of the complainant in view of that dispute of 'Talaq and 5/6 months thereafter the case in hand was registered. He also referred to the statement of Ramzan Ali Shah, S.I., P.W. 11, who testified to the recovery of 'Nikahnama' Exh. P. G. , and 'Talaqnama' mark A and affidavit of Mst. Nishan mark H, alongwith an application for 'Talaqnama' mark C. In cross‑examination he stated that he had also heard about the dispute regarding 'Talaq' during the investigation.
7. The facts given above do go to show that even according to the prosecution witnesses there was a dispute about 'Talaq' between the complainant and Mst. Nishan appellant. A 'Talaqnama' was also recovered not from the possession of the complainant but appellants. It bears the thumb‑impression of the complainant. D.W. 1 Abdul Hamid Qamar, also stated that it was scribed by him at the instance of the complainant and that he got the thumb‑impression of the complainant on his register also. In that view of the matter, the plea taken by the appellants that they were lawfully married stands proved. The prosecution on the other' hand, has not been able to show that 'Nikahnama' subsisted' between the parties and no 'Talaq' had taken place.
8. In this view of the matter, we allow this appeal, set aside the conviction and sentences and direct that the appellants shall be set at liberty forthwith unless they are required in any other case.
M.B.A./318/F Appeal allowed.
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