' SAEED-UR-REHMAN FARRUKH, J.--- This criminal appeal filed by Mureed Hussain and Mst. Amir Mai appellants is directed against the judgment dated 10-1-2005 passed by the Additional Sessions Judge, Muzaffargarh, whereby they were convicted under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 hereinafter called "the Ordinance" and sentenced to four years' R.I. Each.
' Their co-accused namely Muhammad Hussain and Karim Bux were acquitted.
2. Brief facts leading to the present appeal are; a case under sections 16/10(2) of "the Ordinance" was registered at Police Station Shaher Sultan on 18-10-1991 at the instance of Jindwada P.W.3 against the appellants. It was alleged by him that he had married his daughter Amir Mai appellant with one Amir Ahmad. After her marriage, she developed illicit relations with Murid Hussain resulting in bitterness between the spouses. Mst. Amir Mai abandoned the house of her husband and came back to live with him (complainant). Subsequently, he with the aid of Punchayat sent her to her husband's house. It was alleged that Mst. Manno Mai wife of the complainant who had joined hands with Mst. Amir Mai and Murid Hussain got a fake Nikahnama prepared about their marriage inter se. He alleged that the appellants were living adulterous life.
' After investigation, both the appellants as well as two others namely Muhammad Hussain and Karim Bakhsh were challaned to Court. They denied the correctness of the charges levelled against them. At the trial the prosecution led its evidence comprising of testimony of six witnesses.
3. Khuda Bakhsh P.W.1 deposed about haVing seen Mureed Hussain taking Mst. Amir Mai on a tractor and he conveyed information in this behalf to Jindwada complainant.
' Khadim Hussain P.W.2 deposed about having seen the two appellants in the company of their co- accused namely Muhammad Hussain and Karim Bakhsh, travelling in a Suzuki car.
4. Jindwada complainant appeared in the witness-box as P.W.3. He reiterated the allegations levelled by him in the F.I.R. Exh.P.A. He was cross-examined at great length by the defence. He admitted that he did not seek the help of Punchayat for return of Mst. Amir Mai. He asserted that Mst. Amir Mai was initially married with one Iqbal who divorced her. She was then married with Amir Ahmad As regards the alleged Nikah of Mst. Amir Mai with Amir Ahmad he made the following admission:- "It is incorrect that said marriage of Amir Mai with Arnir Ahmad was having consideration of exchange marriage. However, the name of girl proposed to be given in exchange of marriage was not determined."
' A suggestion was made to him that Abdul Karim, Inspector, during the course of investigation, reached the conclusion that Nikah of Mst. Amir Mai with Amir Ahmad was forged and this fact was recorded by him in a Zimni in the police file. He refuted it. He conceded that Mst. Amir Mai was living with Murid Hussain for the last about 13 years and a son had been born to her. He did not accept the suggestion that Mst. Amir Mai had shown the name of Murid Hussain as father of her son in the birth certificate dated 29-10-1989. He denied the suggestion that the present F.I.R. Was lodged by way of counterblasts to the criminal case registered against his son and others regarding murder of his wife Mst. Manno.
5. Statement of Dr. Zulfikar Haider Raee P.W.4 is to the effect that he medically examined Murid Hussain and found him fit for sexual intercourse.
' It is not necessary to reproduce the statement of Abdul Aziz, A.S.-I. P.W.5 as he merely recorded the formal F.I.R. The same is the position of Rab Nawaz, Circle Officer, Anti-Corruption P.W.6. He carried out investigation of the case and arrested Murid Hussain appellant on 4-11-1991.
6. On 12-2-2001, learned A.P.P. Tendered in evidence judgment of Family Court dated 31-7-1996 (Exh.P.C.) decree dated 31-7-1996 (Exh.P.D.), judgment of Additional District Judge, Muzaffargarh, dated 14-6-1997 (Exh.P.E.) and the decree of the even date (Exh.P.F.) and closed the prosecution evidence.
7. Both Mst. Amir Mai and Murid Hussain appellants denied the prosecution story in toto. It was admitted by them that their appeal against the judgment and decree of the .Judge, Family Court, dated 31-7-1996 was dismissed. However, the matter was pending adjudication before the High Court, Multan Bench and, as such, the order of the Additional District Judge had not attained finality. In reply to the question as to why they had been arrayed as accused in the case they put up the plea that the complainant was "lusty fellow". He received Rs,35,000 for sale of Mst. Amir Mai to Ghulam Hussain. Subsequently, they (Murid Hussain and Mst. Amir Mai) contracted marriage with the blessing of mother of Mst. Amir Mai. Mst. Manno who was murdered later on in which Muhammad Ramzan son of the complainant was implicated. The present case was got registered by way of counterblast to the said murder case.
' Mst. Amir Mai took up the plea that her father Jindwada had not objected to her living with Murid Hussain as his wife for the last 10 years.
' Both the appellants expressed their intention to lead defence evidence. They also stated that they would depose on oath in support of their plea of innocence vide section 340(2), Cr.P.C.
' It is not necessary to refer to The statement of Muhammad Hussain and Karim Bakhsh under section 342, Cr.P.C. As they were acquitted by the learned trial Court.
8. Malik Muhammad Akhtar D.W.1, Secretary, Union Council Shehar Sultan entered the witness-box and produced the record of Nikah of Murid Hussain with Mst. Amir Mai, dated 15-10-1989.
' Wahid Bakhsh Nikah Registrar, D.W.2 deposed that he firstly got Sharahi Nikah of Mureed Hussain with Mst. Amir Mai solemnized in 1988. Thereafter, he performed their formal Nikah and entered the same in the relevant register. He alleged that the complainant had earlier sold his daughter Mst.
Amir Mai to one Ghulam Nabi. Mst. Manno mother of Mst. Amir Mai made a complaint in writing before the D.C. Which was sent down to Chairman, Union Council Bairbind so as to determine the veracity of `Nikahnama' of Ghulam Hussain and Mst. Amir Mai. The Chairman held that there was Nikah between Ghulam Hussain and Mst. Amir Mai could not be proved. The complainant conceded before Chairman, Union Council that Mst. Amir Mai was free to contract marriage with anyone of her liking.
9. Mr. Muhammad Ishaq constable D.W.3eposed that on 24-12-1991 he was posted as Naib Court in the Court of Additional Sessions Judge, Muzaffargarh and in his presence Abdul Karim, Inspector sought permission of the Court to take into possession Nikah Register. He went on to depose that Abdul Karim took into possession two Nikah Registers from the record keeper, one pertaining to Qazi Allah Wasaya and the other to Maulvi Wahid Bakhsh.
10. Mst. Amir Mai appellant entered the witness-box and deposed on oath about having contracted Shari Nikah with Murid Hussain 14/15 years ago. After two years she contracted "written Nikah" with him. Prior to this she was married with one Muhammad Iqbal who divorced her. Thereafter, Jindwada complainant sold her to one Ghulam Hussain which was objected to by her mother Mst.
Manno before the District Magistrate. The complaint/application was sent by the District Magistrate to the Chairman, Union Council Bairbind and the complainant, during the course of proceedings in the said application, made a statement before the Chairman that she could contract marriage with anyone of her free-will. She asserted that her Nikah with Murid Hussain was valid and her alleged Nikah with Amir Ahmad was fake and forged.
' During cross-examination he admitted that she filed a suit for jactitation of marriage against Amir Ahmad which was dismissed by the Family Court. Her appeal was also dismissed by the Appellate Court. She asserted that she filed a writ petition which was dismissed in default and an application for its restoration was pending before the High Court. She stated that out of her wedlock with Mureed Hussain a son namely Akhtar Murid had been born. The correctness of factum of pendency of restoration application qua writ petition was not challenged by the prosecution.
11. Murid Hussain appellant supported Mst. Amir Mai with regard to his Nikah with her. He strongly asserted that Akhtar Murid was born out of their wedlock and he was his son.
12. I have heard the learned counsel for the parties and perused the record with their assistance.
13. It is argued by the learned counsel for the appellants that the prosecution had miserably failed to prove its case against them and the impugned judgment was not sustainable in law. It was submitted that for the last about 13 years Mst. Amir Mai was living with Murid Hussain as his wife and a son had been born to them out of their marital ties. The learned counsel referred to and relied upon the litigation with regard to murder of Mst. Manno wife of Jindwada and argued that the present case had been registered against the appellants by way of counterblast qua the said case. The failure of the prosecution to produce Amir Ahmed, the so-called husband of Mst. Amir Mai, was highlighted in support of the plea of innocence of the appellant. According to the learned counsel in case Mst. Amir Mai had been married with Amir Ahmad some documentary evidence should have been produced in this behalf by the prosecution which was not done.
' As regards the civil litigation, referred to in para. 7 (ibid) it was urged that the matter had not attained finality so far as the application for restoration of writ petition by Amir Mai was pending.
' Learned counsel also placed reliance on the statement of Malik Muhammad Akhtar D.W.1 and Wahid Bakhsh D.W.2 and submitted that positive evidence of unimpeachable character regarding the marriage of Murid Hussain with Mst. Amir Mai had been brought on record and its veracity could not be shaken by the prosecution despite gruelling cross-examination.
14. On the other hand, the learned counsel appearing for the State argued that the plea of the defence regarding valid marriage of Murid Hussain with Mst. Amir Mai stood shattered in view of the judgments delivered by the Court of competent jurisdiction i,e, Family Court and the Additional District Judge. Since, as per their own showing, the appellants were living together as husband and wife the learned trial Court was justified in Convicting them under section 10(2) of "the Ordinance".
15. I find merit in this appeal.
16. There is a bitter background of enmity between the parties i,e, Jindwada on the one hand and the appellants on the other. It was at the instance of Murid Hussain appellant that a criminal case regarding the murder of Mst. Manno was registered against Muhammad Iqbal son and A son-in- law of Jindwada complainant. The present case was registered against the appellant thereafter.
The plea of the appellants that it was got registered by way of counterblast to the murder case cannot be brushed aside lightly.
17. The sole basis for prosecution of the appellants was the judgments delivered by the Judge, Family Court and the Additional District Judge dismissing the suit for jactitation of marriage filed by Mst. Amir Mai against Amir Ahmad. To begin with, it could not be proved by the prosecution that the judgment delivered by the Additional District Judge as Appellate Court had attained finality.
Mst Amir Mai deposed on oath that she had filed a writ petition in High Court which was dismissed for non-prosecution but her, application for its restoration was still pending adjudication. This assertion could not be rebutted by the prosecution.
18. Both the appellants have deposed on oath that Jindwada complainant had sold Mst. Amir Mai to Amir Ahmad which caused annoyance to Mst. Manno his wife to such an extent that she complained in writing about his heinous conduct before the District 'Magistrate. The matter was sent down to the Chairman, Union Council, Bairbind. Jindwada appeared before the Chairman who after inquiry found that the so-called Nikah of Mst. Amir Mai with Murid Ahmad was fake wherefrom he declared that Mst Amir Mai was free to marry anyone of her choice. This clearly implied that she was not married to anyone prior to her marriage with Murid Hussain. These facts could not be negated by the prosecution by leading any evidence to the contrary.
19. Admittedly, both the appellants are living together as a married couple for the last 13 years and a child had been born out of this relationship. Both have entered into matrimonial ties with the bona fide belief of being legally entitled to do so. In somewhat similar situation the Shariat Appellate Bench of the Honourable Supreme Court in two judgments reported as Nazeeran v. State NLR 1988 SD 522 and Allah Ditta and others v. The State PLD 1989 SC 744 have laid down that where it was obvious from the record that plea of valid marriage was neither frivolous nor absolutely baseless and was capable of being treated to be bona fide then the accused cannot be held to be guilty of commission of Zina in that "Zina" as contained in section 4 of "the Ordinance" is prefixed by the term "wilful". There being no positive proof adduced by the prosecution that the appellants had not entered into marriage inter se in a bona fide manner or that they were wilfully indulging in Zina the question of their conviction under section 10(2) of "the Ordinance" hardly arose.
' One cannot also lose sight of the fact either that the impugned judgment stigmatized the child born out of the marital relationship of the appellants as bastard. Islam leans heavily in favor of legitimacy of a child. This aspect of the matter was completely glossed over by the learned trial Court.
20. For what has been stated above this appeal is accepted and after setting aside the impugned judgment the appellants are acquitted. Appellant Murid Hussain is in jail. He shall be released forthwith, if not required in connection with any other case. Appellant Mst. Amir Mai is on bail. Her bail bond/surety bond stand discharged.