ALLAH DITTA Versus THE STATE

Allah Ditta petitioner was tried under section 494/109, P. P. S. along with Mst. Zenab, who was later on declared absconder as proceedings under section 512, Cr. P. C. were taken against her. Vida his judgment dated 28th December, 1965, the learned trial Magistrate, Chiniot, found Allah Ditta petitioner guilty of the said offence and sentenced him to two years' R. I. with a token fine of Rs. 10 or in default thereof to undergo two weeks' R. I. It is pertinent to note that no conviction was pronounced against absconding accused. He filed an appeal before the learned Additional Sessions Judge, Lyallpur, who vides his judgment-dated 9-2-1966, dismissed the same as being without any merits.

2. Hence, this revision petition, which was admitted by the order of this Court, dated 24th June 1966 and the petitioner was released on bail.

3. The case has been called out several times during the course of the day but Kh. Gul Muhammad Butt, Advocate, who appeared before this Court on 22-6-1976 and had informed the Court that the case be adjourned as per his instructions the parties had compromised. As the learned counsel has failed to appear today despite his name was displayed in the cause list for today, I proceed to decide the case on merits.

4. I have heard the learned counsel for the State and have perused the record of this case carefully with his assistance. At the time when the case was admitted, following contentions were raised on behalf of the petitioner: -

(i) that Mst. Zenab was married to the complainant on 21st December 1954, who abandoned her after some time and according to the information and belief of the petitioner she was divorced by him. The petitioner married her in the month of May 1961, but the complaint was lodged in the month of June 1963, after about two years of his marriage with Mst. Zenab. In the circumstances, it is suggested that the complaint was lodged mala fide and to harass the petitioner;

(ii) that the petitioner bona fide believed that Mst. Zenab was a divorcee as the complainant was not heard of for more than seven years. Therefore, it is urged that the case of the petitioner is covered by exception to section 494 of the Pakistan Penal Code;

(iii) that Mst. Zenab and Allah Ditta challenged the decree for restitu tion of conjugal rights passed against them by the Court of the Senior Civil Judge, Jhang, dated the 8th June 1963. Which this Court has since admitted. (Attention is invited to Regular Second Appeal No. 29 of 1964.) On this basis it is urged that in case this Court found in the Regular Second Appeal that Mst. Zenab was not the wife of the complainant, his conviction cannot stand; and

(iv) that the, petitioner had already suffered about five months' hard labour and the sentence in the circumstances of the case is excessive and requires consideration by this Court.

Although the learned counsel for the petitioner is not present but I haves assessed the evidence produced in this case in the light of the above contentions. To accept that the petitioner had no knowledge that Mst. Zenab was a married person, would be in a way putting premium on the audacity of a person who commits an offence of the nature as envisaged under section 494, P. P. C. It is the duty of a person who marries a woman to find out whether i he is a divorcee, a virgin or widow or wife of somebody else. In this respect, the record of the case is not helpful in favour of the petitioner and it is fully established on the record that the petitioner was fully aware that Mst. Zenab was a legally wedded wife of the complainant. With regard to the Regular Second Appeal filed by the petitioner against the decree for restitution of conjugal rights, it is sufficient to say that the same has been disposed of in favour of the complainant and not in favour of the petitioner. The judgments of the two Courts below are based on good reasons and I do not find any reason to interfere with the conviction so arrived at by them.

6. The only thing which disturbs my mind at this stage is that this case has been fixed before me after a lapse of eleven years and nothing good will come out for the complainant if the petitioner who has already suffered live months rigorous imprisonment in this case with the agony of protracted trial and process of appeal and revision, is asked to suffer the remaining part of his sentence. The indication as given by the learned counsel for the petitioner on the last date of hearing, also goes to show that an old matter like this, must have been settled somewhere at some end. Mst. Zenab absconded during the course of trial and nothing has been brought on the record during the process of appeal that she was traceable anywhere. 'The presumption would be that she would be living all along with the petitioner and the complainant had accepted this as a fact. In view of the peculiar circumstances of this case and the evidence involved, I am of the considered opinion that the petitioner who has suffered five months' R. I. in this case stands adequately punished. This conclusion would be justified in the light of age-old maxim that one can lead a horse to water but hundred can never make him drink. Mst. Zenab has chosen the way of her life although unholy but it is a fact, which is not disputed.

7. The result of the above discussion is that while dismissing the revision' petition and maintaining his conviction, I reduce the sentence of the petitioner, to the period already undergone by him. Since, he is on bail, he will stand discharged of his bail bonds.

Order accordingly.