MUHAMMAD ASLAM Versus THE STATE

This judgment will dispose of Criminal Appeal No.58/K of 1995 filed by Muhammad Aslam and Criminal Appeal No.64/K of 1995 filed by Mst. Hameeda. By judgment, dated 26-4-1993 passed by the learned IInd Additional Sessions Judge, Karachi South, in Sessions Case No.26/88 (F.I.R. No.90/87, Police Station Civil Line, Karachi) both the appellants were convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; and both sentenced to R.I. for two years. No sentence of whipping and fine was passed. Reference to section 10(2) of the Ordinance would show that in case an accused is convicted under this provision all three sentences have to be passed i.e. imprisonment, whipping and fine. In the present case the trial Court has only passed sentence of imprisonment. The trial Court also did not pass any order under section 382-B, Cr.P.C. although it is mandatory that such order be passed. In case benefit of section 382-B, Cr.P.C. is not extended to an accuses on conviction, the trial Court is required to give reasons for not extending such benefit. I have heard the arguments of Mr. Sardar Muhammad Ishaque, learned counsel for the appellant in Criminal Appeal No.58/K of 1995. Mr. Muhammad Akbar Khan, learned counsel for the appellant in Criminal Appeal No.64/K of 1995 and Mr. Habibur Rasheed, learned counsel appearing for the State in both the appeals. With the assistance of the learned counsel, the record has been perused.

2. In this case, complainant Haq Nawaz had lodged the F.I.R. on 9-6-1987 at Police Station Civil Line, Karachi, alleging that his wife Mst. Hameeda (appellant in Criminal Appeal No.64/K of 1995) had been enticed and abducted by his relative Muhammad Aslam (appellant in Criminal Appeal No.58/K of 1995) on 18-5-1987 and had prepared a forged Talaqnama on behalf of the complainant and had undergone a marriage with Mst. Hameeda. A case was registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. After completion of investigation, the two accused were sent up for trial. They pleaded not guilty to the charge framed on 8-10-1989 against them under section 494, P.P.C. read with section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. During the trial, the prosecution examined nine witnesses. Statements of the accused were recorded under section 342, Cr.P.C. and Muhammad Aslam also appeared in the witness-box under section 340(2), Cr.P.C. Muhammad Aslam also examined 3 witnesses, witness for Aslam and the other two. Afzal and Riaz were not witnesses at the trial. It was also pointed by learned counsel that the trial Court, in effect convicted appellant Muhammad Aslam as also Mst. Hameeda on the ground that the alleged divorce pronounced by complainant Haq Nawaz upon Mst. Hameeda had not been confirmed by the Chairman and, therefore, "Talaq" had not become effective and consequence was that the two accused were living in sin. However, according to learned counsel, no question was put to either of the accused on this important aspect of the case.

Learned counsel for the State does not contest the contention raised on behalf of the appellants that required questions had not been put to the two accused when their statements under section 342, Cr.P.C. were being recorded.

3. It is now well-established that examination of the accused under section 342, Cr.P.C. is not a mere formality. The main object of this provision is to afford an opportunity to the accused to explain his position on each aspect of the case. The trial Court should take all care in this regard so that questions relating to any further defence witnesses, such facility will be provided to the accused.

The two appellants/accused are on bail from this Court who will continue to remain on bail till the fresh decision by the trial Court after remand.

4. This is a very old case. It is directed that the case will be finalized by giving a fresh decision within three months i.e. by 12-5-1996 and the trial Court shall send intimation to the Assistant Registrar, Federal Shariat Court, Sindh High Court Building, Karachi, about the disposal of the case within the prescribed time.

N.H.Q./1068/FSC Cases remanded.