MUHAMMAD IJAZ KHAN, J. Through this single judgment, I intend to decide the instant criminal appeal No. 102-M of 2022 as well as connected criminal appeal No. 97-M of 2022 and criminal revision No. 27-M of 2022, as all these connected matters emanate from one and the same impugned judgment of conviction dated 17.03.2022 passed by the learned Additional Sessions Judge Shangla, vide which the appellants namely Ijaz Ahmad, Mst. Tasleem Bibi, Farid Khan and Mst. Salma Bibi were convicted and sentenced as follows; Appellants namely liaz Ahmad and Mst. Tasleem Bibi;- U/S 494 PPC to four years simple imprisonment along with fine of Rs. 50,000/-each or in default thereof to suffer two months simple imprisonment.
The Appellants were also extended the benefit of section 382-B Cr.P.C.
Appellants namely Farid Khan and Mst. Salma Bibi; U/S 114 read with section 494 PPC to four years simple imprisonment along with fine of Rs.
50,000/- each or in default thereof to suffer two months simple imprisonment.
The Appellants were also extended the benefit of section 382-B Cr.P.C.
2. The appellants faced trial in a criminal case registered against them vide FIR No. 132 dated 29.03.2021 under sections 494,496-A,114 PPC at Police Station Karora District Shangla. As per contents of the FIR registered on the strength of daily diary report No. 06 dated 19.03.2021 the complainant namely Mutabar initially reported the matter to local police in respect of missing of his daughter namely Mst. Tasleem Bibi (the appellant herein) from his house. It was stated in the report that the marriage of his daughter was solemnized with one Noor Ullah about 3/4 years back and his daughter was residing in the house of complainant due to strain relationship between the spouses. The said Noor Ullah was also alleged to have lodged an FIR against the complainant, due to which he has remained in jail and thereafter got released pursuant to a compromise effected between the parties. About 15/16 days prior to the lodging of the report daughter of the complainant was settled in the house of her grandfather and she went missing therefrom since 19.03.2021. In view of the report of complainant an inquiry was initiated under section 156 (3) Cr.P.C whereby the complainant recorded his statement under section 164 Cr.P.C and charged the present accused/appellants namely Ijaz Ahmad and Mst.Tasleem Bibi for contracting illegal marriage despite subsistence of earlier Nikah/ marriage with one Noor Ullah. The co-appellants namely Farid Khan and Mst. Salma Bibi were charged for abetment and facilitation in the commission of the main offence.
3. The accused were summoned by the learned trial Court and charge was framed against them, to which they pleaded not guilty and claimed trial. The prosecution was invited to produce its evidence, who accordingly examined twenty-three (23) witnesses in support of their case and thereafter statements of accused were recorded under section 342 Cr.P.C. On conclusion of proceedings in the case, the learned trial Court convicted and sentenced the appellants vide the impugned order/judgment dated 17.03.2022, as stated earlier.
4. Feeling aggrieved of the aforesaid judgment of conviction of the learned trial Court, the accused/appellants have filed criminal appeal No. 102-M and 97-M of 2022 before this Court while the State/petitioner has also filed the connected Criminal Revision No. 27-M of 2022 (for enhancement of the sentences awarded to the accused/respondents).
5. Arguments of learned counsel for the parties as well as learned Astt:A.G. appearing on behalf of the State were heard in considerable detail and the record perused with their able assistance.
6. As per the prosecution case the complainant namely Mutabar who appeared as PW-19 in this case reported the matter to the local police that his daughter namely Mst.Tasleem Bibi (the appellant herein) who got married to one Noor Ullah some 3/4 years ago and in exchange of which Mst. Saqira was married to his son namely Saleem. Due to strain relationship with her in-laws his daughter was residing in his house, however, during this period his son-in-law namely Noor Ullah registered a criminal case against him under section 324 PPC and as such the complainant remained behind the bars for some period who was later on released on the basis of compromise.
About 15/16 days prior to the lodging of report Mst. Tasleem Bibi (the present appellant) was residing in the house of her grandfather wherefrom she went missing on 19th March 2021. Report of the complainant was initially reduced into daily diary No. 06 dated 19.03.2021 where the complainant has charged one Ajmal Khan but during inquiry the complainant recorded his subsequent statement under section 164 Cr.P.C whereby he charged the present appellants and as such the instant case was registered against them at police station concerned.
7. It is also relevant to mention here that though the charge was framed under sections 496-A, 494 and 114 PPC to which they did not plead guilty, however, on the conclusion of the trial all the four appellants were convicted and sentenced under section 494 and section 114 respectively.
8. Before appreciation of evidence available on file recorded by the prosecution it would be relevant to reproduce section 494 PPC as under; Marrying again during lifetime of husband or wife: Whoever, having a husband or wife living, marries in any case in which, such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception: This Section does not extend to any person, whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
In view of the above for constituting an offence under section 494 PPC, the following are the essential ingredients;-
(1) The accused must have contracted a previous marriage;
(ii) He must have married again;
(iii) The spouses of the accused must have been living at the time of the second marriage;
(iv) The first marriage must be subsisting at the time of the second marriage;
(v) The second marriage should be void, under the personal law governing the parties, by reason of its taking place during the lifetime of the spouses of the accused. the aforesaid section of law is applicable to any person who are having a living husband and wife, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife. Now on the above touchstone, the following three questions are to be determined:-
(1) Whether Mst. Tasleem Bibi was married to one Noor Ullah and who was living and in existence of such a marriage she has contracted marriage with the appellant namely ljaz Ahamd?
(2) Whether the appellant namely Ijaz Ahmad was having the knowledge that the appellant namely Mst. Tasleem Bibi was a married woman and despite it he contracted a marriage with her?
(3) Whether the co-appellant namely Farid Khan and Mst. Salma Bibi have abetted and facilitated the main accused in the commission of offence?
In order to thrash-out the prosecution evidence and to appreciate the same as to whether the prosecution has been able to prove the existence of Nikah of Mst. Tasleem Bibi with Noor Ullah, her husband. To establish the factum of the said marriage the prosecution has produced the Nikah - Khawa namely Molvi Aman Ullah who appeared as PW-3 and who has categorically stated that he has solemnized the Nikah between Noor Ullah and Mst.Tasleem Bibi in consideration of haq-mehar comprising of one tola gold in presence of the witnesses of Nikah. He has also stated that as per custom of the locality no written Nikah-Nama was executed. Similarly, another witness of the Nikah namely Muhammad Bashar appeared as PW-4 and he too has categorically stated that he personally participated in the marriage ceremony of Noor Ullah and Mst. Tasleem Bibi which was solemnized in lieu of consideration of one tola gold. Another marginal witness of the Nikah between the appellant Mst. Tasleem Bibi and Noor Ullah namely Hazrat Ali also appeared as PW-5 and he too stated that he is the witness of the Nikah which was solemnized between Noor Ullah and Mst.Tasleem Bibi in consideration of one tola gold. The production of the above three important witnesses by the prosecution strongly established that in-fact Mst. Tasleem Bibi was married to Noor Ullah and thus in existence of the said marriage and when he was a living husband she has entered into a marriage with the co-appellant namely Ijaz Ahmad and as such the same is a void marriage within the meaning of section 494 PPC.
9. The factum of Nikah between the appellant namely Mst. Tasleem Bibi and Noor Ullah has also been established from the statements of close relatives of the appellant i.e. her sister namely Mst.
Bakht Sultana who appeared as PW-18 and she has categorically stated that Mst. Tasleem Bibi was married to Noor Ullah and during the period of her missing she was residing in her parents' house.
Similarly, her real father namely Mutabar who is the complainant of the present case has also appeared as PW-19 and he too supported the marriage of her daughter with Noor Ullah. Though both these witnesses at the later part of their cross-examination were declared hostile but that too for no valid reasons, however, it is reiterated that their examination-in-chiefs are available on record and the same are in line with their initial report and other evidence recorded by the prosecution, therefore, the same could be considered by a Court of law for reaching a fair conclusion.
10. The Nikah of the appellant Mst.Tasleem Bibi with Noor Ullah was the nucleus and epitome between complainant and nominated accused, therefore, the prosecution has tried their level best to produce the best possible and natural witnesses to establish the same as the husband of Mst.
Tasleem Bibi namely Noor Ullah too himself appeared as PW-16 and he has whole-heartedly stated that Mst. Tasleem Bibi was his legally wedded wife and that in existence of the said marriage she has contracted marriage with the appellant namely Ijaz Ahmad. Similarly, the father-in-law of Mst.
Tasleem Bibi namely Bashareen (the father of Noor Ullah) also appeared in the Court as PW-17 and he too has supported the case of prosecution.
In view of the above overwhelming, consistent, trustworthy and natural witnesses it can safely be concluded that Mst. Tasleem Bibi was the legally wedded wife of Noor Ullah and as the said Noor Ullah was her living husband, therefore, her second marriage with the appellant namely Ijaz Ahmad is a void marriage. On the same touchstone, when Mst. Tasleem Bibi was a married woman, therefore, entering of marriage with her by the co-appellant namely Ijaz Ahmad is also guilty of entering a void marriage.
11. It is also relevant to mention here that an FIR No. 213 was registered by Noor Ullah almost ten months back on 09.06.2020 against his father-in-law i.e. the complainant of the present case namely Mutabar to the effect that he has made an attempt at his life by firing at him with firearm, as a result of which he got injured on his left shoulder. It has specifically been mentioned in the said FIR that the accused i.e. his father-in-law is not allowing his wife namely Mst. Tasleem Bibi to go with him to his house, therefore, the very contents of this FIR shows that the husband of the appellant Mst. Tasleem Bibi namely Noor Ullah has put all his efforts to bring her to his house, but the appellant Mst. Tasleem Bibi was even then not willing to live as a wife with her husband namely Noor Ullah.
12. It may be noted that for establishing an offence under section 494 Cr.P.C the existence of void marriage is a sine qua non and of course such provision of law could not be pressed in cases of irregular or voidable marriage, but in the present case since the husband of the appellant Mst.
Tasleem Bibi namely Noor Ullah was living, therefore, without proper separation from him she could not enter into a second marriage and as such her marriage with the co-appellant namely Ijaz Ahmad is a void marriage. Since Mst. Tasleem Bibi was a married woman, therefore, the appellant Ijaz Ahmad too could not enter in marriage with her during existence of first marriage and as such he has willfully contracted a void marriage. In the case of "Mst. Nazir Yasin v/s Yasin Faryat" reported as PLD 2000 Lahore 594, the Hon'ble Lahore High Court has held that in view of the above quoted provisions/sections of the Christian Marriage Act, 1872, Special Marriage Act, 1872 and Divorce Act, 1869, the valuable assistance rendered by Bishop of Lahore and the precedents cited, I am of the considered opinion that the marriage of respondent with Mst. Rozina Juliat was void and he is guilty of the offence under section 494, P.P.C. In the case of "Abdul Satfar v/s Mst. Zahida Perveeen & 10 others" reported as 1991 MLD 403 the Hon'ble Sindh High Court observed that something may now be expressly said about section 494, P.P.C. which is another provision where- under conviction was sought. The operative part of that section runs as follows: -- "494, whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished."
Obviously this section applies only to void marriages. In the case of "Mst. Payari v/s Faqir Chand Alakha" reported as AIR 1961 PH-549, the Hon'ble Punjab-Haryana High Court has held that on reading section 494 I.P.C it would appear that in order that a person may be convicted of an offence of bigamy, the second marriage must be a form of marriage recognized by law; otherwise, it would be simply an adulterous union and it would not be hit by the provisions of Section 494 I.P.C.
One of the essential ingredients of Section 494 I.P.C. is that the second marriage must be void by reason of its taking place during the lifetime of the husband or the wife of the first marriage.
Therefore, by appreciating the prosecution evidence it is held that the two appellants namely Mst.
Tasleem Bibi and Ijaz Ahmad have been guilty of an offence punishable under section 494 PPC and as such they were rightly found guilty of the said offence by the learned trial Court through the impugned order/ judgment.
13. The second question would be that in the existence of living husband and wife whether the two appellants have entered into void marriage or not, this fact has also been successfully proved by the prosecution as the two appellants themselves have sent their Nikah-Nama and other documents to the Investigating Officer which were exhibited as Ex. PW-11/8 to Ex. PW-11/10 and apart from this they have also produced PW-20 namely Molvi Hafiz Ghulam Sarwar who has stated that he has solemnized the Nikah between the two appellants in consideration of one tola gold.
Similarly, Mehran Ullah was produced as PW-21who too has supported the Nikah between the two appellants. PW-22 namely lzhar Ullah who is a deed writer and he too placed on record certain documents in respect of marriage of the appellants, therefore, the marriage between the appellants have on one hand admitted by the two appellants by sending the Nikah-Nama to the Investigating Officer of this case and on the other hand they themselves produced witnesses of the same, therefore, it is an established fact on record and as such in view of the above admitted facts the marriage between the appellants is a void marriage and as such fully attracts the provisions of section 494 PPC.
14. It is also relevant to mention here that both the appellants in their statements recorded under section 342 Cr.P.C have admitted their inter-se marriage and thus both of them are liable to be convicted under section 494 PPC.
15. As far as the case of appellants namely Farid Khan and Mst. Salma Bibi is concerned, they have been implicated as an accused for the facilitation and abetment in the aforesaid void marriage. In order to prove this fact, the prosecution has produced driver of the truck namely Shabir Ahmad as PW-23 and who has stated about the alleged facilitation furnished by him at the instance of the appellant namely Farid Khan. The prosecution has not been able to bring on record any independent evidence to support that either before the commission of the offence or after the commission of the offence the two appellants namely Farid Khan and Mst. Salma Bibi who are spouses inter-se have abetted in the commission of the offence. Though, there are allegations of abetment and facilitation in the commission of the offence, however, the prosecution has not brought on record any evidence whatsoever in support of their stance. If at all the prosecution has been looking for the main facilitator then the real culprit was the truck driver himself who appeared as PW-23, however, he was not arrayed as an accused by the prosecution. Even otherwise, the stance of the prosecution that since appellant namely Farid Khan was a cleaner with the said driver, therefore, on his instigation the driver facilitated the couple while fleeing-away from their houses. It may be noted that a cleaner could never be in a commanding position rather it is a driver who used to be in commanding position as against the cleaner but here the situation is altogether different, therefore, in presence of such unnatural evidence the prosecution has not been able to prove the allegations of abetment and facilitation against the two appellants namely Farid Khan and Mst. Salma Bibi.
16. As far as the quantum of punishment is concerned, it may be noted that though the sister and father of the appellant namely Mst.Tasleem Bibi appeared before the Court and they have also recorded their statements in the shape of examination-in-chiefs in which they have charged the present appellant, however, later on both these witnesses have purposely extended concession to her, therefore, in such eventuality, the learned trial Court has rightly awarded the impugned punishment of four years instead of maximum punishment provided for the offence i.e. seven years.
17. In light of what has been discussed above, it is held that the learned trial Court has rightly convicted the accused/appellants namely Ijaz Ahmad and Mst. Tasleem Bibi after finding them guilty for commission of the offence by giving valid reasons in the impugned judgment to their extent and as such the criminal appeal No.102-M of 2022 is found devoid of any force and the same is accordingly dismissed, therefore, the impugned judgment to their extent is maintained, whereas criminal appeal No. 97-M of 2022 filed by the appellants namely Farid Khan and Mst. Salma Bibi is allowed by setting aside the impugned judgment dated 17.03.2022 of learned trial Court to their extent. They are acquitted of all the charges leveled against them. Since both these appellants are on bail, therefore, their sureties are discharged from liability of bail bonds, whereas criminal revision No. 27-M of 2022 filed by the State, for enhancement of the sentence awarded to the accused/respondents is also dismissed.