1. Petitioner above-named, being aggrieved by judgment dated 19-2-1981 of learned Ist Additional Sessions Judge, Dadu, in Criminal Appeal No. 8 of 1980, by which judgment dated 10-4-1980 of the learned Civil Judge & F. C. M. Dadu, in Case No. 146/75, was confirmed, has preferred the above petition, on the following facts and grounds :- Briefly the complainant's case is, that petitioner Mst. Haseena is legally --wedded wife of the complainant and Nikah was performed at Thatta on 17-7-1973, in the presence of witnesses. After marriage the complainant and petitioner Mst. Haseena lived as husband and wife at Thatta and at Saeedanko potho, in taluka Dadu. In August, 1973, the father of the petitioner Kist. Haseena took her with him and in December, 1973, the com--plainant came to know, that Mst. Haseena was being married with one Abdul Jabbar Jatoi, as such the complainant filed a civil suit against petitioner Mst. Haseena, her father and the said Abdul Jabbar Jatoi. The said Court issued injunction, but on 18-4-1974 returned the plaint to the complainant. The petitioner Sikandar Ali lodged a report against the complainant and others for abduction of petitioner Mst. Haseena, in which case the petitioner Mst. Haseena appeared as a prosecution witness in the Court of Civil Judge and F. C. M.
2. Dadu and deposed that the present complainant was her husband, with whom she had married of her free will and as such petitioner Haseena was allowed to go with the complainant. It is complainant's case, that petitioner Haseena left the house of complainant in the month of August, 1974 and did not return, as such the complainant filed a suit for restitution of conjugal rights on 24- 7-1975, against petitioner Mst. Haseena in the Court of family Judge, Dadu, wherein petitioner Haseena filed her written statement on 25-10-1975 declaring, that she had married to the petitioner Ghulam Mustafa and has produced such Nikah Nama registered by accused Ghulam Husain, who is now dead. It is alleged that petitioner Haseena knowing, that she was already married with the complainant contracted another marriage in the lifetime of the complainant and the accused Ghulam Mustafa knew, that she has already married with the complainant and she was his legally- wedded wife. The accused Sikandar Ali acted as Vakil of bride, while accused Ghulam Sarwar and Ahmed Ali acted as witnesses. The accused Ali Sher acted as Vakil of bridegroom, while accused Sher Muhammad and Shafi Muhammad acted as witnesses.
3. The accused Muhammad Khan and accused Sikandar Ali acted as the witnesses of the marriage of petitioner Haseena with accused Ghulam Mustafa. It is alleged that all the accused had the knowledge of prior marriage of Mst. Haseena with Gul Hasan and solemnized the second marriage, in the existence of previous marriage.
4. The learned trial Court framed a charge against all the ten accused persons, that petitioner Mst.
5. Haseena and the accused Ghulam Mustafa married with each other knowing that the marriage of petitioner Mst. Haseena with complainant Gul Hasan still exists and the rest of the accused abetted the above two accused in commission of the said offence as such committed offences punishable under section 494, read with 199, P. P. C. All the accused pleaded not guilty to the abovesaid charge and wanted to be tried.
6. The complainant in support of his case examined himself as P. W. 1 and produced the Nikahnama dated 17-7-1973 as Exh. 13/A, statement of petitioner Mst. Haseena dated 20-6-1974 as Exh. l3-B, copy of plaint of suit for Restitution of Conjugal Right as Exh. 13-C, the Nikahnama of petitioner Mst.
7. Haseena with accused Ghulam Mustafa as Exh. 14-D, and the complaint as Exh. 13-E. He also examined P. W. Khuda Bux P. W. 3-A Abdul Karim P. W. 4 Haji, P. W. 5-A Haji Allah Bachayo, who produced the photostat copy of Nikahnama dated 17-7-1973 and the complainant closed his side under Exh. 19.
8. Co-accused and petitioner were examined under section 342, Cr. P. C. The accused Ghulam Mustafa in his statement Exh. 22, denied the allegation and stated that .'fist. Haseena is his relative since childhood. He was in Army and became P. O. W. In Former East Pakistan and after return from Army he married with Mst. Haseena, when he was Soldier of East Pakistan he was informed through letters of his relatives, that the complainant Gul Hasan had abducted Mst. Haseena and such case was pending before the Court of Sessions. However he did not lead any defence. The petitioner Mst.
9. Haseena in her statement Exh. 23 also denied the allegations and stated that she was abducted by the complainant party and such case is pending before Assistant Sessions Judge, Dadu. She stated that she was not married with Gul Hassan at Makli, Thatta, neither Nikahnama was written nor she signed that, Nikah--nama produced by complainant is false and forged. She stated that the complainant abducted her and she was taken to different places and thereafter she was secured by police from Kotri and brought before Mukhtiarkar Dadu, where her statement was recorded and she was handed over to her parents. She produced her statement before Civil Judge and F. C. M. Dadu as Exh. 23-A and the diary of Civil Suit No. 40/73 as Exh. 23-B however she did not lead any defence. The accused Sikandar Ali also denied the allegations and stated that he was - unaware of any Nikah performed between Gul Hasan and Mst. Haseena. The accused Mohomed Khan also denied the allegations and stated that accused Ghulam Mustafa is his nephew, who was engaged with Mst. Haseena since childhood. The accused Ghulam Hussain also denied the allegations and stated that there was no intimation or instructions to him for non-performing of Nikah, as such, he bona fidely performed the Nikah. The accused Ghulam Sarwar also denied the allegations and stated that he was not aware of any Nikah between Gul Hasan and Mst. Haseena.
10. The accused Ahmed Ali and accused Sher Muhammad and the accused Ali Sher also denied the allegations and took the same stand, that they were not aware of any Nikah between Gul Hassan and Mst. Huseena. None of the accused led any defence.
11. The learned trial Court taking into consideration the evidence adduced before it, convicted all 8 accused persons as mentioned in the said judgment, while appellate Court in, Criminal Appeal 8/80, while acquitting 7 co-appellants, convicted the applicant under section 494, P. P. C. And maintained sentence, of 3 years' R. I. And fine of Rs. 1,000 or in default to suffer further R. I. For 2 months, and consequently applicant has preferred the above petition, on the grounds mentioned in the memo of petition.
12. The learned Advocate for the petitioner in support of the above petition submitted as under :-
(a) That alleged first marriage of petitioner was not proved by the prosecution in accordance with law and as such her conviction cannot be maintained. In support of this contention, the learned Advocate for the petitioner relied upon cases PLD 1960 Dacca 723, PLD 1969 Dacca 47, PLD 1967 Dacca 704 and 1972 P Cr. L J 1091..
(b) That there is material contradiction between the evidence of P. W. 3 Haji Abdul Karim and P. W.
13. 4.
(c) That P. W. 5 admitted before the learned trial Court that alleged Nikahnama was not registered with Union Council and further it does not bear the signature of petitioner and as such prosecution has failed to establish its case in accordance with provisions of section 50 of Evidence Act.
(d) In the alternative, the learned Advocate for the petitioner submitted that sentence awarded to petitioner is harsh. In support of this contention the learned Advocate for the petitioner relied upon case 1969 P. Cr. L J 1182.
14. None appeared for the State, though above petition was called three times earlier and as such I proceeded to hear the same, in the absence of the State counsel, as there is no intimation or request for adjournment on behalf of the State.
15. I have carefully considered the above submissions made by the learned Advocate for the petitioner and have gone through the R & P of the learned trial Court and cases cited by the learned Advocate for the petitioner.
16. The main ground on which the learned Advocate for the petitioner has attacked the impugned judgment is, that prosecution has failed to establish in accordance with the provisions of section 50 of the Evidence Act, alleged previous marriage of the appellant, as the alleged Nikahnama of the previous marriage admittedly was not registered with the Union Council nor Exh. 17-A, the alleged Nikahnama bears the signature of the petitioner. In addition to this the learned Advocate for the petitioner submitted, that the reliance placed by the learned trial Court on the statement of the applicant Exh. 23-A dated 20th June, 1974 was unwarranted as the same was given under duress by the petitioner. I find no force in these contentions of the learned Advocate for the petitioner as Exh. 23-A is the certified copy of statement of the applicant before Civil Judge and F.
17. C. M. Dadu in which she has admitted her marriage with Gul Hassan categorically. I see no reason to doubt, that this statement was given by the applicant out of her free will; in Case No. 14/74 in the said Court without duress. In view of this non-registration of the said Nikahnama or absence of applicant's signature on Exh. 17-A does not prove, that the applicant was not married to Gul Hassan, Exh. 23-A was put to applicant in her statement under section 342, Cr. P. C., in reply applicant only deny the same to be correct, but did not allege any duress for having given the said statement. In view of this in my opinion, in accordance with the provisions of section 50 of the Evidence Act, that applicant was married to Gul Hasan prior to her present marriage and she contracted the present marriage, while earlier marriage was in subsistence.
18. The cases cited by the learned Advocate for the applicant are based on different facts and as such are not applicable to the present case.
19. Therefore I find no merits in the above petition and consequently dismiss the same. The applicant is on bait and her bail bond is cancelled and the learned trial Court is directed to issue non- bailable warrants for the arrest of the petitioner and on her arrest to remand her back to judicial custody to serve out the remaining sentence awarded to her, under the impugned judgment. I further direct that benefits of remission of section 382-B, Cr. P. C. Be given` to the applicant towards her substantive sentence.