1. This judgment will dispose of Criminal Appeal No, 239/I of 2005 filed by Yousaf Masih and Mst.
2. Shabana Bibi, appellants against the judgment dated 11.7.2005 passed by Rana Nisar Ahmed Khan, Additional Sessions Judge, Rawalpindi, whereby they were convicted under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (hereinafter referred to as the Ordinance) and sentenced to 10 years R.I. each with a fine of Rs, 10,000/- each, or in default of payment of fine to further undergo three months S.I, each. They were however extended the benefit of Section 382- B, Cr.P.C.
2. According to the prosecution, Allah Ditta moved an application to the SHO, Police Station Saddar Berooni, Rawalpindi claiming himself to be Christian and husband of Mst. Shabana Bibi, daughter of .Arora Masih. Appellant Yousaf Masih resided in his colony who developed illicit relations with Mst.
3. Shabana Bibi. On 14.4.2004 Allah Ditta was away from his house to attend to his job, when he came back at about 2.00 p.m. he found that Mst. Shabana Bibi was missing. He started her search and was informed by his uncle Arora Masih and his son Ihsan Masih that they had seen both Yousaf Masih and Mst. Shabana going together in a taxi car. It was therefore reported to the police that Yousaf had abducted Mst. Shabana Bibi for immoral purpose. The case was registered and necessary investigation was carried out, whereafter both the appellants, i,e, Yousaf Masih and Mst.
4. Shabana Bibi were sent up to face trial in the Court of Additional Sessions Judge, Rawalpindi. They were charged under Section 16 read with Section 10 of the Ordinance. On denial of the charges, both were put on trial.
3. The prosecution in support of the charges examined nine witnesses. Allah Ditta appeared as PW.1. He stated that Mst. Shabana Bibi was his wife and out of the wedlock four children were born.
5. Yousaf Masih, appellant/accused was resident of his colony. Mst. Shabana Masih developed illicit relations with Yousaf Masih and on 14.4.2004 when he was not present in his house Mst. Shabana left his house. Allah Ditta's sister informed him that she had gone to her parent's house. He started her search and ultimately visited the house of his father-in-law in Dhok Saidan, who informed him that Mst. Shabana Bibi had been seen going along with Yousaf Masih in a taxi car. During cross- examination Allah Ditta admitted that he moved application before the police on the asking of his father-in-law. He further admitted that he joined the investigation only on the asking of his in-laws.
6. Next witness is Rura Masih (PW.2). He is father of Mst. Shabana Bibi. According to him, Mst. Shabana Masih was married to Allah Ditta (PW.1). He saw Mst. Shabana Bibi going along with Yousaf Masih, appellant in a taxi car. As such his statement is confined only to the fact that he saw Mst. Shabana Bibi going along with Yousaf Masih, appellant. PW. 3 Nadia Karim lady constable is a formal witness who got Mst. Shabana Bibi medically examined. PW.
4. Ejaz Hussain Khan medically examined Mst.
7. Shabana Bibi and also conducted her ultrasound examination. According to him, there was intact pregnancy of nine weeks. He submitted his report Exh. PD. PW. 5 lady doctor is Shahida Gillani. She medically examined Mst. Shabana Bibi, whose age was recorded as 22 years. She referred her to the radiologist i,e, doctor Ejaz Hussain (PW.4). On his report that Mst. Shabana was pregnant, said lady doctor submitted her medical report Ex. PE, based on the report of the radiologist. She testified before the Court her report as Exh. PE. PW.6 is a formal witness who only handed over the sealed envelope to Gulab Khan constable for onward transmission to the office of Chemical Examiner.
8. PW.7. Dr. Mushtaq Ahmad, CMO examined Yousaf Masih aged about 23 years. He after his medical examination declared that Yousaf Masih was potent. Gulab Khan, constable (PW.8) delivered the sealed envelope in the office of Chemical Examiner. PW.9 Saeed Mehmood is a formal witness. He attested the application moved by Allah Ditta and other documents prepared during course of investigation and identified them before the Court. During cross-examination he admitted that a certificate was produced by Muhammad Yousaf appellant testifying that he had embraced Islam.
9. He also admitted that a Nikahnama was produced before him by Yousaf Masih, appellant to prove his Nikah with Mst. Shabana. This is the entire prosecution evidence produced by the prosecution in support of the charges.
10. 4.On close of the prosecution evidence, the appellant Yousaf Masih denied the allegations levelled against him. He gave his age as 26 years and came forward with the plea that he had embraced Islam in the month of March but the documentation was done on 14.4.2004. This assertion was confirmed by Hafiz Fazaldad Chishti who solemnized their marriage. Similarly Mst. Shabana during her statement under Section 342 Cr.P.C. also gave her age as 26 years. She in answer to Question No, 3 explained that she had been watching Islamic programes on T.V. and was convinced that Islam was true religion. She embraced Islam on 11.11.2003. She informed her husband Allah Ditta about her conversion to Islam and also offered him to embrace Islam but he refused to do so. She also stated that the documentation regarding conversion to Islam and marriage was carried out on 14.4.2004. According to her, she got married with Yousaf Masih who had also converted to Islam.
11. In answer to question that she being wedded wife of Allah Ditta had committed Zina with Yousaf Masih, appellant, she explained that after she got converted to Islam, her wedlock with Allah Ditta was automatically broken. She thereafter married Yousaf Masih on 14.4.2004 according to Sharia and was living with him since then as his legally wedded wife in accordance with Islamic law.
12. 5.The learned trial Judge on conclusion of the trial convicted both the appellants, i,e, Yousaf Masih and Mst. Shabana Bibi under Section 10(2) of the Ordinance and awarded each of them a sentence of 10 years R.I. with a fine of Rs, 10,000/- each, in default to suffer three months S.I. The benefit of Section 382-b, Cr.P.C. was granted. Both the appellants have filed the instant appeal before this Court.
13. 6.The learned counsel for the appellant has argued that even if the defence plea of the appellants is ignored there has been brought nothing incriminating on record by the prosecution to prove the guilt of the appellants as required under Section 10(2) of the Ordinance. It is contended that the prosecution has to stand on its own legs. No accused persons can be convicted merely on the basis of the plea raised by him in defence. It is further supplemented that if the defence plea of the appellant is to be believed then it should be accepted in its entirety. According to the appellant's they both are Muslims. They have converted to Islam and they in the circumstances to the best of their knowledge and belief, considering that the wedlock of Mst. Shabana Bibi with her previous husband Allah Ditta had been broken, she was free and competent to contract marriage being a Muslim woman to any other Muslim in accordance with injunctions of Islam. It is further pointed that the case was registered against them on 19.4.2004 with Police Station Saddar Berooni, Rawalpindi under Section 16 of the Ordinance whereas according to the statement of both the appellants, they got married to each other with their own consent on 14.4.2004. At the point of time when accusation of abduction or Zina was made against them, the appellants had been legally married to each other. The question that the marriage suffered from some technical defect account of which the same cannot be accepted as a valid marriage, according to learned counsel, validity may be decided and determined by a Court of competent jurisdiction. According to learned counsel, this Court at the moment has to consider, whether the appellants committed Zina with each with the intention of committing Zina and necessary mensrea to constitute the offence was present. If the same is lacking and the parties committed sexual intercourse with each other believing themselves to be man and wife then they cannot be punished under Section 10(2) of the Ordinance. The learned counsel in support of his contention has referred the principle laid down in case of Nazeeran vs. State (NLR 1988 S.D. 522) it was observed by their lordship of the Full Bench and the principle laid down thereunder is that if a woman believing herself to be validly wedded to a man commits sexual intercourse with him then such a newly converted Muslim woman cannot be held guilty of commission of Zina. Their lordship have dealt in detail in the cited judgment that the legal details or technical defects in the marriage may not be considered adverse to the innocence of the woman.
14. Although the ruling is not directly on the point which is subject matter of this appeal, yet the principle laid down in the ruling provides a guidelines to determine the guilt of a woman by way of analogy who submits herself to a man under a bona fide belief that she is wife of that person.
7. In the present case as per the defence plea raised by the appellants both of them believed themselves to be man and wife. Both got converted to Islam and thereafter entered into Nikah with each other. They cannot be held guilty for committing Zina with each other especially while exercising jurisdiction during criminal proceedings. In case there are two possibilities available then one in favour of the accused has to be adopted.
15. 8.As regards conversion of Islam, any non-Muslim can convert to Islam by announcing that he has embraced Islam by "believing in oneness of Allah Almighty, Hazrat Muhammad (PBUH) be his last Prophet and also other Arkan of Islam". No specific rite or procedure has been prescribed in this regard. Mullah's Muhammadan Law Section 19 Chap-II, Edition XVII.
16. 9.In view of what has been observed above, it is contended that the appellant being Muslims got married to each other cannot be held guilty of commission of Zina after they had entered into Nikah. The offence of Zina would be constituted as envisaged by Section 10 of the Ordinance only whether offence is committed with intention or at least with knowledge to commit Zina.
17. The learned counsel has further referred to the judgment reported as 1997 P.Cr.L.J. 1082 (The State vs. Mushk-e-Alam). It was held therein that to convict a person for offence of Zina direct evidence of the act is a must. Reference has also been made to a famous case Muhammad Azam PLD 1984 Supreme Court 95, wherein their lordship was pleased to observe that if Nikah in between the parties have not been challenged, then during criminal proceedings before this Court the same will be admitted as true to the benefit of the accused. Lastly the case of Naseer Ahmad vs. The State (1991 F.S.C. Page 921) has been referred to mandating that while dispensing justice principle of "Adl- bel-Ishan" has to be kept in view.
18. The counsel before concluding his arguments has placed on file an affidavit on behalf of Allah Ditta, complainant (PW.1), who was husband of Mst. Shabana Bibi stating therein that Mst. Shabana Bibi had accepted Islam and had also offered him to do the same, but he refused to so. He further added that he was instigated and prompted by his father-in-law Manzoor Masih to appear as a witness and he unfortunately succumbed to his pressure. A similar affidavit on behalf of Manzoor Masih alias Rura, who is father of Mst. Shabana Bibi, has been submitted. He stated that in fact the members of his community got annoyed with Mst. Shabana Bibi because she had converted to Islam, therefore, he appeared as a witness against her in Court. He further deposed that he has effected a compromise with the accused persons and does not want to proceed with the matter any further.
19. 10.The learneu counsel for the State has objected to the admission of the affidavits. According to him, the offence is not compoundable and in presence of the evidence on record of the trial Court, the affidavits do not have any legal value.
20. The learned counsel for the appellant, however, has tried to explain that may be the offence is not compoundable yet effecting a compromise by the parties has always been treated and accepted as an extenuating circumstance in favour of the accused persons, the appellants are therefore entitled to a lenient view to be taken by this Court.
21. 11.After going through the evidence and hearing the parties as discussed above, there is no direct evidence that appellants did commit Zina with each other. The only circumstance brought on the file by the prosecution is the pregnancy of Mst. Shabana Bibi. During her statement Mst. Shabana Bibi has not admitted the pregnancy but the medical evidence in this regard is positive. Although attaining of pregnancy does reflect that the same must be consequence of copulation but the pregnancy by itself is no evidence to prove beyond doubt that the pregnancy was result of intentional Zina, As referred to above, the law has been clearly propounded in case of Mst.
22. Nazeeran vs. The State by the Hon'ble Shariat Appellate Bench that in order to constitute the offence of Zina criminal intent or mensrea is necessary. If a woman believing herself to be wife of her accomplice commits sexual intercourse with him, may be erroneously, should not be punished for commission of Zina.
12. The sum and substance of the above discussion is that it will be unsafe to sustain the appellants' conviction on the strength of the evidence brought on record by the prosecution. Therefore, the appeal is accepted, the appellants' conviction is set-aside and they are acquitted of the charges against them. They are stated to be confined in Central Jail Adiyala, Rawalpindi, they shall be released therefrom if not required in any other case.