' MUHAMMAD JEHANGIR ARSHAD, J.---This appeal is directed against the judgment dated 1-11-2002 passed by Jam Manzoor Ahmad, learned Additional Sessions Judge, Shakargarh, District Narowal whereby Nisar Ahmad, Zulfiqar Ali, Gulzar Ahmad, Mst. Mumtaz Bibi, Mst. Yasmin and Mst.
Nasreen/respondents were acquitted in a case arising out of F.I.R. No,172/1997, dated 19-12-1997 registered with Police Station, Shah-Gharib, District Narowal under sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and section 379, P.P.C.
2. The facts as disclosed in the F.I.R. Are as under:-- "The complainant Irshad Ahmad (P. W.2), in his complaint Ex.P.A alleged that on 12-12-1997 at 06.00 A.M. He, along with his mother Hajran Bibi and his sister Irshad Bibi, were present in their house when accused Mumtaz Begum, Yasmin wife of Shafique Ahmad, Nasreen wife of Shabbir Ahmad came to their house and took his sister Irshad Bibi, out of house on the pretext of easing themselves. They waited for a long time but Irshad Bibi, did not turn up. He went to the house of Nasreen, Yasmin etc. And enquired about his sister Irshad Bibi. Nasreen and Yasmin told him that Irshad Bibi, had gone back to her house after easing herself. He searched his sister in the Mohallah. Muhammad Afzal PW, who was present at that time at Kanjrur and Muhammad Asghar Butt son of lqbal Butt resident of Kanjrur, told him that they were going outside the fields to ease themselves and they saw Irshad Bibi, standing alongwith Nasreen, Mumtaz and Yasmin on the road, when Nasreen, Gulzar and Zulfiqar accused alongwith one unknown person came in a car. They also told him that the accused stopped the car near Irshad Bibi and pushed her into the car and Nareen etc. Came back to their houses. He again went to the house of Nasreen etc. And they were not present in their houses. On suspicion, he searched the iron box and found six golden bangles weighing six tolas, one necklace weighing four tolas, one pair of golden ring weighing 1-1/2 tolas, three ladies rings weighing one tola and Rs,20, 000/cash were missing from the iron box. Nasreen etc. Had stolen these articles. He alleged that the accused abducted his sister Irshad Bibi, for the purposes of "ZinaHaram-Kari". He tried through respectable of the area for the return of his sister Irshad Bibi but the accused refused to do so."
3. The case was duly investigated; the respondents were arrested and statements of the P.Ws.
Were recorded under section 161 Cr.P.C.. After completion of investigation, report was submitted in the trial Court against the respondents, under section 173 of the Code of Criminal Procedure.
4. The learned trial Court framed charge against the respondent Nisar Ahmad on 8-12-1999 under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. However, a separate charge was also framed against the respondents Zulfiqar Ali, Gulzar Ahmad, Mumtaz Bibi, Yasmin and Nasreen on 12-7-2001 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The respondents did not plead guilty and claimed trial.
5. The prosecution in order to prove its case produced 7 witnesses. The gist of evidence need not be reproduced as the same is already mentioned in detail in the impugned judgment. However, the prosecution evidence shall be examined, assessed and discussed in this judgment wherever required.
6. After completion of prosecution evidence, the statements of the accused under section 342 of the Code of Criminal Procedure were recorded, wherein they denied the allegations levelled against them and claimed to be innocent. Similarly, the accused also produced 3 witnesses in their defence in addition to the statement of accused namely Nisar Ahmad which was recorded under 340(2), Cr.P.C. However, the remaining accused namely Zulifqar Ali, Gulzar Ahmad, Mumtaz Bibi, Yasmin Bibi and. Nasreen Bibi did not opt to get their statements recorded under section 340(2), Cr.P.C.
7. On the completion of trial, the learned trial Court as noted above, found the accused/present respondents Nisar Ahmad, Zulfiqar Ali, Gulzar Ahmad, Mumtaz Bibi, Yasmin and Nasreen wife of Shabbir Ahmad not guilty of the charge and thus acquitted them through the impugned judgment.
Hence, this appeal.
8. .This appeal was admitted for regular hearing by a learned Division Bench of this Court on 26-3- 2003. According to office report, notice was sent to the appellant as well as her learned counsel namely Malik Saeed Hasan, Advocate for today, which was received in his office by his clerk namely Wali Muhammad, but no-body has turned up on behalf of the appellant, whereas respondents Nos.2 and 3 namely Gulzar Ahmad and Zulfiqar Ali are present in person. However respondent No,1 Nisar ' Ahmad is stated to have expired during the pendency of this appeal. Since an appeal which has been admitted for regular hearing, in the ordinary circumstances, cannot be dismissed, due to non-appearance . Of the appellant or her counsel, therefore, we have decided to dispose of this appeal on merits, after hearing learned DDPP as well as going through the record. We have heard the learned DDPP and have also gone through the impugned judgment.
9. The learned trial. Court while acquitting the respondents Nisar Ahmad, Zulfiqar Ali, Gulzar Ahmad, Mumtaz Bibi, Yasmin and Nasreen wife of Shabbir Ahmad was mainly impressed by the fact that Mst. Irshad Bibi/appellant not only accompanied Nisar Ahmad deceased/ respondent with her free-will but also contracted marriage with him without any coercion and undue influence vide Nikah Nama Exh.D.A. The learned trial Court was further persuaded by the fact that Mst. Irshad Bibi/appellant herself filed suit for jactitation of marriage denying her Nikah with Nisar Ahmad deceased, yet also made alternate prayer in her suit for dissolution of marriage and the learned Judge Family Court, Daska vide judgment dated 28-61999 decided issues Nos.1 and 2 in the following terms:-- "She has prayed alternative relief of dissolution of marriage. This Court is of the opinion that there is no possibility of reunion. The parties are at litigation. It would be better if they depart. The plaintiff is, therefore held entitled to dissolution of marriage as alternative relief. The issues are disposed of accordingly".
10. Vide judgment dated 28-6-1999 passed by the Judge Family Court Daska the existence of valid marriage between Mst. Irshad Bibi and Nisar Ahmad (deceased respondent No,1 was established, therefore, it could not be held that the relationship between them were not of matrimonial in nature. In this regard, we would like to refer to the judgment of "Apex Court in the Azam case (PLD 1984 SC 95) wherein it has been held that decree passed by a Judge Family Court was conclusive evidence of existence or non-existence of marriage between the parties and the said decree is binding even up to the Supreme Court of Pakistan". Therefore, in our opinion, the learned trial Court rightly came to the conclusion that the prosecution has failed to prove the charge against all the accused/respondents and they were rightly acquitted of the charges. It would not be out of place to mention here that Nisar Ahmad respondent No,1 deceased/accused with whom Mst. Irshad Bibi contracted marriage of her own free will and consent and which marriage was also validated by the Judge, Family Court, Daska through its decree dated 28-6-1999, has died after the impugned judgment and during the pendency of this appeal, which fact is borne out from the order of this Court dated 28-9-2009. Therefore, the said fact has also rendered this appeal infructuous in toto because after the death of main accused namely Nisar Ahmad, there remained no criminal liability of the remaining respondents. For this reason too, we are satisfied that this appeal, even to the extent of remaining respondents is no more maintainable and the same is liable to be dismissed.
11. Even otherwise, as held by the Apex Court from time to time; the criterion for deciding appeal against acquittal is different from one against conviction. The Apex Court in "PLD 2010 SC 632, 1991 SCM R 2220 and 1992 SCM R 96 laid down the criteria for interfering in the judgment of acquittal'. It has been held by the Apex Court in the above noted judgments and several other that the Appellate Court should always give proper weight and consideration to the views of the learned trial Court as to the credibility of the witness and there was presumption of innocence in favour of the accused; a presumption certainly not weakened by acquittal at trial. It was further held that the Appellate Court should not disturb a finding of fact recorded by a learned trial Court unless the judgment of learned trial Court is perverse, based on misreading or non-reading of evidence and gross injustice has been done in the administration of criminal justice. It was also held by the "Apex Court in 2009 SCM R 985 that merely difference of opinion regarding appreciation of evidence was no ground to set-aside the judgment of acquittal".
12. In the light of the above noted criteria laid down by the Apex Court, we find that the judgment of the learned trial Court is neither perverse nor based on misreading and non-reading of evidence and further no injustice has been done in the administration of criminal justice by the learned trial Court while passing the impugned judgment.
13. Resultantly, this appeal has no force and the same is dismissed.