' Allah Yar son of Allah Ditta caste Tanwery Baloch and Mst. Shahzad Perveen caste Awan, appellants herein, were tried by Sessions Judge, Khanewal under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 read with sections 467/468/471/494, P.P.C. Vide judgment, dated 7-8-2001, they were convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and awarded sentence of R.I. Ten years each with whipping numbering ten stripes each and fine of Rs,10,000 each or in default of payment whereof they will further undergo R.I. For six months. They were further convicted under section 494, P.P.C.
And sentenced to R.I. For seven years each with a fine of Rs,10,000 or in default whereof to further undergo R.I. For six months each, they were also convicted under sections 465/471, P.P.C. And sentenced to R.I. For two years each on each count. Benefit of section 382-B, Cr.P.C. Was extended to them.
' Ashiq, accused died during the trial hence the proceeding were dropped to his extent.
2. Relevant facts giving rise to this appeal are; on 21-12-1988 Abdul Shaicoor son of Muhammad Abdullah resident of Chak No,4/AH, District Khanewal lodged F.I.R. (Exh.P.B.) at Police Station Makhdoom Pur Pahoran, inter alia alleging that he was married with Mst. Shahzad Perveen daughter of Muhammad Nawaz on 25-8-1988. About a month and half back he went home after closing his shop and found his wife missing. He was informed by Waryam and Abdul Ghafur (P.W.3) that at Dopeharwela they had seen his wife boarding a bus along with Ashiq son of Azim. On inquiry Ashiq told him that father of Shahzad Perveen was sick and he was taking her to Multan. On the following day the complainant, allegedly, went to the house of his father-in-law and found that neither he was sick nor Shahzad Perveen had gone there. Later on, he learnt that the appellant and Ashiq were staying in Chak No,2/F,, Larr and engaged in illicit intercourse with his wife. Delay in lodging the F.I.R. Was explained by alleging that during the interregnum he had been trying to retrieve Shahzad Perveen through Panchayat.
3. Initially, after investigation, incomplete challan was submitted in Court against Allah Yar, appellant and Muhammad Ashiq (since dead) under section 16 (Enforcement of Hudood)
Ordinance VII of 1979. In the complete challan, presented before the Court again both the two ex- persons was arrayed as accused and shown in Column No,3 of the report under section 173, Cr.P.C.
' Vide order, dated 10-3-1996, Shahzad Parveen was taken into custody and it was held that she, too, had to face trial along with Ashiq and Allah Yar.
4. Charge was framed against the three accused under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 467/468/471/494, P.P.C. And section 15 read with section 19(2) of (Enforcement of Hudood) Ordinance, 1979. All the accused pleaded not guilty and claimed trial.
5. At the trial, statement of Abdul Shakoor complainant was recorded twice as P.W.1 i,e, on 25-11- 1996 and 13-5-2000. The statement recorded on 25-11-1996 was complete in all respects and there was thus, no legal justification for re-recording his testimony on 13-5-2000. It, however, having become part of judicial record Court cannot be omitted from consideration.
' Abdul Shakoor, while reiterating the allegations in the F.I.R., went on to state that he, his father-in- law and his brother-in-law saw that Shahzad Perveen was carrying on sex activity with accused Ashiq and Allah Yar. He claimed that he never divorced Shahzad Perveen his wife and during investigation, it transpired that they had fabricated a Nikah Nama between Shahzad Perveen and Allah Yar (Exh.P.C.). He allegedly sought verification from Multan Municipal Corporation and found that there was no entry about it. He produced certified copy .Of report of Chief Officer (Exh.P.D.) in this behalf. He went on to depose that he met the Nikah Khawan and Nikah Registrar, Muhammad Amin who denied having performed Nikah between Shahzad Perveen and Allah Yar. Significantly, neither the Chief Officer of Multan Municipal Corporation was produced to prove certificate Exh.P.D.
Nor Muhammad Amin, above mentioned. According to him the alleged witnesses of Nikah namely Ramzan and Younus had worn affidavits before police that they did not witness the Nikah between (Shahzad Parveen and Allah Yar). They, too were not produced and hence their affidavits, exhibited as Exh.P.K. And Exh.P.L. Remained unproved.
' Abdul Shakoor P.W. 1 resorted to Civil litigation and filed two suits before Judge, Family Court which were decreed ex parte as evidenced by documents Exh . P.E . , Exh . P.F . , Exh.P. G. , Exh. P.H. , Exh.P.I.
And Exh.P.J. According to him, on bearing that "they had decided the challan case against me", he filed a complaint which was dismissed. Again, there is nothing on the record about the factum of filing of the complaint and its dismissal.
' He produced documents Exh.P. 0 . , Exh. P.P. , Exh. P. Q . , and Exh.P.R. To support his plea that the accused party instituted proceedings to get the decrees obtained by him against them set aside but these ended in failure.
6. In cross-examination, he insisted that he did file a private complaint which was dismissed. He added that this complaint was against ten persons. He admitted that Shahzad Perveen had filed a suit for jactitation of marriage against him. According to him, it was dismissed for non-prosecution, and appeal was pending before District Judge, Multan. He expressed ignorance that three suits filed by Shahzad Perveen were pending against him. He denied the suggestion that Shahzad Perveen was living with her sister, apart from Allah Yar, who was a married person.
7. In his second statement before trial Court on 13-5-2000, he admitted that he divorced Shahzad Perveen during the hearing of her appeal which was thus, dismissed.
' In this statement, it came out that he had a wife and she was residing with him. He asserted that before entering with marriage with Shahzad Parveen the same he had obtained oral permission from his wife. He reiterated the factum of filing of complaint but changed his earlier stance and contended that he had withdrawn it. He conceded that he did not see with his eyes Shahzad Perveen and Allah Yar committing Zina.
' On behalf of defence, this witness was specifically challenged to prove his marriage with Shahzad Perveen. He asserted that at the time of his marriage many relatives (named by him)' participated in the ceremony and Nikahnama Exh.P.A. Was executed which was signed by him, Shahzad Perveen and others. He stated that he did not know as to whether or not Nikahnama Exh.P.A. Was sent to the Handwriting Expert and as per his report it was forged and fictitious document.
8. The prosecution produced few more witnesses. Abdul Ghaffur P.W.3 alleged that he had seen Shahzad Perveen and Muhammad Ashiq (deceased) standing at Bus Stand of Chak No,4/AH and he informed him that father of Shahzad Perveen was ill and they were on their way to Multan in this regard. This witness is real cousin of the complainant and as such interested in his cause.
Statement of Ashiq Hussain H.C. P.W.4 is of formal character and need not be dilated upon. Same is the position of Yousaf Ali P.W.6, before whom Allah Yar appellant produced his Nikahnama with Shahzad Perveen.
' Wali Muhammad, Inspector F.I.A. P.W.5 carried out major part of investigation. He deposed that he arrested the three accused on 7-1-1989 and on the same day he got statement under section 164, Cr.P.C. (of person not named by him) recorded by a Magistrate. Incidentally, this statement is not on record. He, however, during cross-examination conceded that the statement of Shahzad Perveen was recorded under section 164, Cr.P.C. And she took the stand that she was legally- wedded wife of Allah Yar and that she was neither married with the complainant nor her thumb- impression was available on the Nikah Nama (about her alleged marriage with him).
9. The appellants, in their statements under section 342, Cr.P.C. Inter alia, denied marriage of Shahzad Perveen with the complainant and instead insisted that she was married to Allah Yar. A Allah Yar stated that he was prevented from defending the suits by the complainant as he had hired persons to ensure that he could not enter the Court premises.
10. In defence, Muhammad Saeed Akhtar, S.-I./S.H.O. Appeared as D.W.1 and deposed that he sent Nikah Nama of the complainant Exh.P.A. To Technical Services Crimes Branch, and also forwarded the specimen signatures of Shahzad Perveen, obtained under the orders of Magistrate, for comparison who opined that the signature attributed to her on Nikah Nama with Abdul Shakoor complainant appeared to be forged and substituted of Pert of Nikah Nama with another Pert of Nikah Nama as there could be no two second Pert.
' Khalid Hussain D.W.2 brother of Shahzad Perveen appeared in the witness-box and supported her plea of her marriage with Allah Yar.
' Finally, report of Technical Service was tendered, in evidence as mark "C" by Allah Yar and defence evidence was closed.
11. I have heard learned counsel for the parties as well as perused the record.
The crucial point involved in this case on which the fate of this case hinges is as to whether the complainant was proved on record to be the lawfully-wedded husband of Shahzad Perveen or not? If B the answer to the question is found to be in the positive, then certainly the appellants would be held guilty of the offences with which they were charged.
12. I find that apart from the statement of Abdul Shakoor P.W.1 and the Nikah Nama Exh.P.A., there is nothing on record in the nature of direct evidence to support the prosecution case. The judgments of Judge Family Court in fovour of the complainant, and some of them against Shahzad Perveen, the favor being in suits for restitution of conjugal rights and latter for jactitation of marriage, though of some evidentiary value, do not conclusively prove the factum of marriage of complainant with Shahzad Perveen on the principle that in the criminal case, the trial Court is not bound by the judgments rendered in civil litigation. One cannot lose sight of the glaring facts also that the judgments in favor of complainant are all ex parte and the explanation of Allah Yar that he was forcibly prevented from contesting these suits filed by the complainant carries some weight and does not seem improbable. Why he should have not defended these suits as he was fighting bitterly with him in the criminal case so as to avoid conviction. As regards the dismissal of the jactitation suit by Shahzad Perveen, it has to be kept in view that though it was dismissed by trial Court yet her appeal was pending before the Appellate Court when the complainant pronounced "Talaq" upon her thus, rendering the appeal to be infructuous, with the result that no final adjudication could take place.
13. Many flaws in the prosecution case were highlighted during arguments and no satisfactory answer was furnished by the complainant's counsel. The Nikah Khawan and the witnesses of alleged Nikah of complainant were withheld and so also the statement of Shahzad Parveen under section 164, Cr.P.C. And this gives rise to adverse presumption that had the witnesses and the documents produced, same would not have been supportive of the prosecution case. The report of the expert dubbing alleged Nikah Nama Exh.P.A. Between complainant and Shahzad Parveen as forged has gone unchallenged so much so that no counter-evidence of some other expert was produced.
14. Burden to prove the offence/offences levelled against the accused always is heavily on the prosecution in a criminal case and in case doubt arises qua the evidence, on record, its benefit per force has to go to the accused. The prosecution cannot seek conviction by picking holes in the defence evidence/version. The evidence led by the complainant to show that there was no valid Nikah between Shahzad Parveen and Allah Yar is, therefore, of little consequence. In the instant case in my view, sufficiently strong doubt existed in the version/evidence of the prosecution regarding the marriage of the complainant with Shahzad Perveen.
' In any case the complainant himself having severed his alleged relationship of marriage by pronouncing divorce upon her before Additional District Judge, could not, under any principle of Islamic dispensation of justice in a criminal case, be permitted to further harass her. Learned counsel for the complainant, when confronted with this situation, had no explanation to offer in this behalf.
15. Learned trial Judge grossly erred in law in holding the two appellants as guilty of offences of forgery, and living adulterous life as there was no evidence worth the name on the record for reaching these conclusions.
16. The upshot of the above discussion is that the prosecution having failed to prove its case beyond doubt against the appellants, the impugned judgment is not found to be sustainable in law. Consequently, the appeal is accepted and the appellants are acquitted. They are on bail and their surety bonds shall stand discharged. .