MUHAMMAD AZAM vs MUHAMMAD IQBAL AND OTHERS

1. JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.--This appeal through special leave of this Court is directed against the judgment of the Federal Shariat Court dated 26.5-1982, whereby the judgment dated 18-4-1982 of the, Sessions Judge, Gujrat, convicting Muhammad Iqbal, respondent, for an offence of Zina-bil-Jabr (not liable to Hadd) under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was set aside and he was acquitted. The prosecution case is that on 22.6-1981, Mst. Sajida Bibi, the prosecutrix, a young virgin girl under the roof of her parents was inveigled and led away to a car parked at some distance by the women co-accused of the respondent (accused) where she was pushed into it and then taken away to various places, She was recovered on 19-7-1981. Attempts were made by the police to get her statement under section 164, Cr. P. C. Recorded soon thereafter but it appears that the same could not be recorded due to the resistence by the accused side; on the plea, that she had made a statement during her alleged abduction ' before a Magistrate in a complaint against her grand-father and parents, which was subsequently dismissed for non-prosecution.

2. The mainstay of the prosecution case was the deposition by Mst. Sajida Bibi sought to be supported by other pieces of evidence. In the examinationin-chief it reads as follows:- "P. W. S.-Sajida Bibi daughter of Muhammad Azam, Caste Tarkhan aged 14 years, household, r/o Darya P. S. Kunjah, Tchsil Gujrat on S. A.

3. On 22-6-1981, I was present in my house. Rabia and Irsbad P. Ws. Were also present there. Sardar Begum, Shahida and Zahida accused asked me to go out on the pretext to ease ourselves. I accompanied them to saim-nala. Iqbal and Nawaz accused were present there near a car. They took me into the car by catching hold of my arms. I raised noise. My mother and my Phuphi were behind me and they saw me being taken by the accused. I was taken to Gujrat on the car. My statement was recorded by force at Gujrat. My thumb-impressions were obtained forcibly on some papers. My Nikah was not performed with any one. Muhammad lqbal accused committed Zina-bil- Jabar with me. Iqbal then took me to Rawalpindi and then to Karachi. A telephonic message was made at Karachi and then I made statement before the police. My father was at Gujrat. I was medically examined at Gujrat by a lady doctor."

4. Apart from this statement of the prosecutrix the following material was before the learned Courts below:

(1) Statement of Muhammad Azam her father about his wife Mst. Irshad Begum (not examined as unnecessary) and Mst. Rabia P. W. His sister, that they saw the initial taking away of the girl and the incident about the car; and that he lodged the report on this information.

(2) Statement of Mst. Rabia Bibi about the occurrence.

(3) Birth entry with statement of the Secretary of a Union Council that at the relevant time the prosecutrix was less than 15 years of age. Another birth entry produced by defence showing her age as about 16 years.

(4) A statement of the prosecutrix recorded under section 200, Cr. P. C. Upon a complaint against her own grand-father and parents which was dismissed for default.

(5) An assertion of a Nikah by defence without direct evidence and the statement by the prosecutrix that her thumb-impression was obtained on some papers under coercion-No Nikahnama nor witnesses thereon, however, was produced by the defence.

(6) Statement in an affidavit and otherwise made by the prosecutrix in High Court for release from Darul Aman and desire to live with the parents.

(7) Attempt of the defence to prevent the recording of the statement of the prosecutrix under section 164, Cr. P. C. Soon after be recovery, on the pretext that her statement had been earlier recorded under section 164, Cr. P. C. And also on a complaint; and, the defence evidence about the complaint.

(8) Medical evidence showing that the first act of coitus with the prosecutrix took place about 21 days prior to 19-7-1981 and subsequently she was subjected to several such acts before her recovery by the police; while, D. W. 1 stated that her alleged Nikah was performed with Iqbal accused/respondent 2 days prior to her recovery on 18/ 19-7-1981.

(9) Statement of Aurangzeb Jarua (D. W. 1) showing that two days prior to the production of the prosecutrix and the respondent before the police on 18/19-7-1981 their Nikah was performed and that this D. W. Although not a witness of the Nikab, had seen a Nikabnama. His assertion was that the prosecutrix had made a statement before the police that she had married the respondent and that Nikabnama was produced before the police. No such question (about the statement) was asked from the Investigating Officer and the prosecutrix; whose deposition shows as if an attempt was made at a fake Nikah on the same day when she was produced before a Magistrate to support a false complaint, I. e. On 22-6-1981. The Nikahnama and other Nikab evidence was however not summoned or produced in Court.

(10) Admission by the respondent about conjugal intimacy on plea of marriage.

5. The learned trial Judge did not accept the statement of respondent about the Nikah without evidence about it and convicted him for the offence of Zina under section 10(3) of the Ordinance as noted earlier. He, however, acquitted all the accused in the charge of abduction under section 11 of the Ordinance. On appeal the learned Federal Shariat Court acquitted the respondent on the assumption that there was valid marriage with consent between hfst. Sajida Bibi and Muhammad Iqbal respondent as against the finding by the learned trial Judge that she was not a consenting party to it.

6. The circumstances relied upon by the learned Federal Shariat Court are as follows:

(I) Statement of .41st. Sajida Bibi under section 200, Criminal Procedure Code, on the complaint filed by her on the day of the occurrence against her parents and grand-father in which she gave her age as 17 years and asserted that she wanted to marry Muhammad Iqbal respondent; although at the trial she, as observed in the impugned judgment, claimed that some thumb-impressions were procured forcibly from her;

(ii) that she was produced before a Magistrate on 9-7-1981 but the police recorded this incident as of 18-7-1981; so as to cover up the period, as assumed, spent on prevailing upon the girl to involve the accused falsely for abduction and Zina.

(iii) That she was produced before the Magistrate thrice and her statement could be recorded only on second occasion, presumably under section 164, Cr. P. C.

(iv) That she was not willing to go to the house of her parents, that is why she was sent to Darul Aman after the so-called recording of the statement on 26-7-1981 and after her production in Court on 5-8-1981. Therefore, her statement was due to police pressure.

(v) That although the birth certificate Exh. P. D. (showing the age of the prosecutrix as less than 15 years) produced by the father of the prosecutrix "appears" as if it "may be forged document", because it was issued by a Union Council where she was not born; but it was not found necessary to give final judgment on the question of age of the prosecutrix: firstly, because she had attained the age of puberty on admission of menstruation two years prior to the occurrence and thus the marriage with her consent was valid; and secondly, because marriage in violation of the provisions of the Family Laws Ordinance "except probably in case of marriage of minor with her consent only, does not invalidate the marriage."

7. With respect it was argued by the learned counsel that each one of the findings suffers from some misreading; but that by itself. Would not, a will be presently shown, justify the setting aside of the acquittal; because the trial Court also failed to record all essential evidence, so as to reach correct conclusions about: the alleged marriage, the statements under section 164/200, Cr. P. C. The age of the prosecutrix and effect thereof on the acts of the accused. In the circumstances of this case the failure of the trial Court to act in accordance with law regarding the conduct of trial has also reacted on the decision of the Federal Shariat Court en the said question. On account of this reason the impugned judgment, it would be seen, has also become liable to be set aside. Thus for the above reasons the setting aside of the trial Court judgment and remand of the case for fresh trial becomes necessary. As the question of remand for fresh trial is directly involved in this case therefore, effort would be made to avoid conclusive finding on any question of fact, which would vitally effect the culpability or otherwise of the accused.

8. It is in evidence that after the alleged abduction but before the recover of the prosecutrix a Nikahnama (not produced) was prepared showing if she was married to Muhammad Iqbal accused. This Nikahnama, it is the statement of D. W. 1 was also shown to the police during the investigation. According to the said D. W. The alleged Nikah,. Evidenced by the Nikahnama, was performed two days prior to the recovery of the prosecutrix by the police. This witness however was not himself the witness of Nikah but had seen the Nikahnama. Moreover, it appears from his statement that the police had also during the investigation confronted 'the girl with this Nikahnama. No question was put to the Investigating Officer nor to the prosecutrix, about this Nikahnama; nor was it produced by the defence in support of their main substantial plea of a validly performed Nikah. Even if an Investigating Officer (he may not be the same who appeared as a prosecution witness) after seeing the Nikahnama failed to take it into possession so as ultimately to produce it before the Court as all evidence of its being fake as is the prosecution case now, the defence could have led direct evident about the Nikah and the preparation of the Nikahnama. If it was not available the examination of secondary evidence about the same was necessary. And secondary evidence about the Nikahnama was not available to the defen which is most unlikely, the defence could have produced the witnesses of the Nikahnama including the scribe, the Nikahkhawan and the witnesses of Nikah. They must have, even if it was a ,sham Nikah, been mentioned such in the Nikahnama. Whether the police withheld the Nikahnama allegedly shown to them during the investigation or the defence for reason best known to it withheld the same as also the other evidence regarding the alleged Nikah; there remains no doubt in the circumstances of this case, that on account of the prosecution case about the use of coercion by the accused and the defence plea of valid Nikah without coercion, the sesolution of this controversy was absolutely essential for the just decision of the case. It is not one of those cases where antiquity is involved and availability of primary or secondary evidence is doubtful, nor was so the case of the defence which was more vitally interested in the discovery and production of this evidence (because it must be within their knowledge as to who was the Nikah khawan and who were the witnesses.

9. The duty nevertheless lay squarely on the trial Court to summon the entire available evidence on this controversy and record/admit the same by virtue of power under section 540, Cr. P. C. It reads as follows: "540. Power to summon material witness or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."

10. This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case. As has already been observed the evidence in question relating to Nikah was undoubtedly essential for the just decision c of the case. In the circumstances of this case the failure of the learned trial Judge to act under the said part of section 540, Cr. P. C. Has not only deprived the Appellate Courts of essential material for the just decision of the appeal, but has also occasioned miscarriage of justice. As would be presently seen, after the enactment of the new criminal law about abduction, marriage and sex offences, the evidence regarding the questions noted above has become all the more essential to be recorded, for just decision of these cases.

11. The foregoing was only one major aspect where the trial Court failed to perform its duty regarding summoning and admission of evidence. There is another aspect also. The defence represented before the Court and there is material on the judicial file to show that the prosecutrix had (according to the prosecution version due to fear/force) recorded one or more statements before Magistrate (s) regarding circumstances of the alleged abduction, her association with Iqbal accused as also about the alleged Nikah and her age. The record of one proceedings on a complaint, alleged to have been filed by the prosecutrix against her own parents after the alleged abduction, professing the same to be under section 506/34$ P. P. C., is on the file. The allegation in the complaint and statement under section 200, Cr. P. C. Was that she was betrothed to Muhammad Iqbal respondent during childhood, that her parents wanted to marry her elsewhere to which she was not agreeable and that she having run away from her parents' house on her own, was at the time of the filing of the complaint, residing with a female friend {{URDU TEXT}}(u,L4--) at Gujrat ; when on 21-6-1981 the accused mentioned in the complaint including her father, mother and grand father came there and wanted to take her along to their house but on her refusal abused her and further that on her raising the alarm they went away while threatening to murder her.

12. This statement is of 22nd June, 1981 i,e,, the same day on which according to the F. I. R. In the main case, the girl was taken away from her parents' house by the accused party. The complaint purports to have been thumb-marked by the prosecutrix but the same was not put to her in cross- examination so as to ascertain as to whether she owned it and the thumb-impression thereon. She on the other hand stated at the trial that though some thumb-impressions were procured by force from her, she never made any such statement before the Magistrate. She further explained that on production by the accused before a "Magistrate", she protested and raised noise on which she was admonished by the Magistrate and was ordered by him to make the statement and then on account of this fear she made a statement, meaning thereby, the tutored version. And that thereafter "the Naib Court and other o recitals of the Court accompanied her to the car. No Magistrate would do or permit this. Either the girl told lie or she first went through the well-known fake and mock proceedings arranged, by the culprits to test whether she would follow the dotted course. The victim of such a farcical test, ordinarily follows the tutored lines, after the first reaction to the protest, i,e,, the rebtfke by a privately arranged fake Court in the mock proceedings. In this case the Magistrate who appeared in defence to depose about the complaint proceedings stated that no such incident took place on the said complaint. If the prosecutrix is right then she must have been produced before a fake Magistrate and after her protest, some other method might have been used to accomplish the purpose of preparing a statement of the girl on oath supporting the defence version. One possibility of production of another girl before the genuine Magistrate, could also be considered in the light of the statement made by the Magistrate as a defence witness. The trend of cross-examination and his admissions shows that he could not identify the complainant. The address of the complainant in the case is shown to be "Mohallah Kalupura, Thane Sadder, Gujrat" while the address of both the main parties in this case is of village "Darya P. S. Kunjah". It was necessary in these circumstances to summon evidence regarding who the female friend of the complainant (mentioned in the complaint) was with whom she allegedly stayed during the days when according to the prosecution she was with her parents or in detention as an abductee with the accused party. Had these pieces of the evidence been received, of course in its details, the consequences might have been totally different. And in that eventuality proper action could be taken against persons who indulge in such like farcical proceedings without due care and caution.

13. Learned trial Court, notwithstanding sufficient precedent cases ; showing that in cases like the present one sometimes effort is made to create false evidence in support of defence plea of willing elopement and/or Nikah with consent fake and false criminal complaints are filed in Magistrate's Courts so as to get the statement of the so-called complainant recorded on oath under section 200, Cr. P. C., failed to summon and admit all the vital evidence regarding this complaint. It was the duty of the trial Court to resummon and re-examine the prosecutrix under the second part of section 540, Cr. P. C. As discussed above to discover the truth about this piece of evidence. This was also essential for the just decision of the case.

14. ' It is pertinent to note that the record of the complaint purports to show that the complainant made the statement under section 200, Cr. P. C. On 22nd June, 1981. The complaint thereafter purports to have come up before the Magistrate for further proceedings on several occasions but none pursued the same and ultimately it was consigned to record. The said proceedings, o face at least, appear to be one of those typical which are launched before Courts ; of the Magistrates on complaints under section 107/151, Cr. P. C.; sometimes under section 506/34, P. P. C. As in this case ; the proceeding for recovery of females under section 100, Cr. P. C. And other provisions of Criminal Procedure Code (before Magistrates and District Magistrates) ; and, sometimes even before the High Court purporting to be proceedings under section 491, Cr. P. C. Or 561-A, Cr. P. C. Or, even in writ jurisdiction with a view to get either a statement of abducted recorded on oath ; or, he similar statement in an affidavit filed with such proceedings. This is beside the a davits before the Notary Public and the Oath Commissioners, so as to create defence plea in the cases of abduction, kidnapping or rape. Such practice, howsoever well-known, by itself would not be enough to wave a concrete finding of fact in a given case that the proceedings were also so as to create/support a defence plea in a criminal case, without detailed evident or material about the circumstances in which any of such proceedings were launched.

15. The practice is nevertheless of such magnitude that it should put the Courts dealing with these matters on extreme care and caution for discovering the reality and truth. If ultimately a case is found of this type then, proper action should launched (against persons involved with mala fide intentions or those NO fail to act with due care and attention) in Court of law or in other forum including administrative. The failure of the parties to produce sufficient evidence after introducia this subject should not have deterred the trial Court in performing the duty under the second part of section 540, Cr. P. C. The trial Court has, a discussed above, failed to doso and therefore on this account also the case merits remand for fresh trial.

16. It is also in evidence and the learned Chief Justice of the Federal Shariat Court has made mention of it that the prosecutrix, was produced before one or more Magistrates during the investigation for recording of her statement under section 164, Cr. P. C. ; but, the defence resisted this attempt on the part of the police on the plea that similar statements (including presumably those under section 164, Cr. P. C.) had already been recorded. The attempt of the defence in all probability was to show that once a statement under section 164, Cr. P. C. Has been recorded during the investigation of a case, a second statement of the same person could not be recorded. Apart from the question whether or not it is a correct proposition of law, this issue for the time being does not arise because no statement recorded under section 164, Cr. P. C. Of the prosecutrix was proved either from the side of the defence or by the prosecution ; which as asserted by the defence had already been recorded by a Megistrate under the said provision. If there was some such statement, when proved its admission in evidence and consideration would have been vital for the just decision of the case.

17. The learned trial Court failed to ascertain clearly all circumstances about this controversy, so as to place on its own record the contents of such statement under section 164, Cr. P. C. Had it been so recorded. The Magistrates who recorded the same and the circumstances in which it was recorded could have been examined, again, under the second part of section 540, Cr. P. C., in case both the parties had failed to produce the same.

18. It appears from the record (which contains enough documentary material in this behalf) that during the investigation of the case the prosecutrix was ordered to be detained in Darul Aman. The complainant party challenged this detention in the High Court. She was then produced before a learned Judge of the High Court. There are proceedings in that behave in which she purports to have acted in a particular manner ; whether the same favours the accused or the prosecution will have to be determined after evidence is admitted at the trial stage and the prosecutrix is duly confronted therewith. This also was not done by the learned trial Court. The entire material regarding the statements, in any formal proceedings under section 164, Cr. P. C., made by the prosecutrix during the investigation and/or prior to her by the police, in addition to the complaint and section 200, Cr. P. C. Proceedings, was essential for the just decision of the case. Failure of the trial Court to act in accordance with law in this behalf also resulted in miscarriage of justice.

19. ' Although another aspect of the case also required deep scrutiny yet I cannot be said that the material admitted in evidence in that behalf was not enough for just decision of the case. It is the question of the age of the prosecutrix at the relevant time. It has been observed in the impugned judgment that in the circumstances of the case it was not necessary to render any final decision on this question ; but notwithstanding the same, apart from examining the question of the puberty of the prosecutrix, it was also essential for examining other relevant questions. With regard to alleged coercion, the age of the girl would be relevant. A girl of 14 if acting under fear might behave in a more submissive manner than an elder mature female. It would also be relevant for other cognate offences under the Ordinance. Therefor in this view of the matter, it might become necessary to summon and record more evidence about the place and date of birth of the prosecutrix as also the entries in connection therewith. This also could be done under section 54 if it was not otherwise available in defence or prosecution evidence.

20. It needs to be observed that for purpose of acting under section 540 Cr. P. C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different.

21. Sometimes apprehension is expressed that any action by the trial Court under section 540, Criminal Procedure Code would amount to filing the gad and omissions in the version or evidence of one or the other party. It ma straightaway be observed that in so far as the second part of section 54 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the lust decision of the case. It was held in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (1) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court witness at an earlier stage then notwithstanding the fact that the defence would have an extra advantage of putting leading questions .To the witness when standing in the witness-box as a Co .Rt witness, it would not effect the power of the Court (under section 540, Cr. P. C.) to summon and examines the witness if, of course, as was observed in that case, it was in the interest of justice and thus presumably essential for the just decision of the case.

22. Again in The State v. Maul vi Muhammad Jamil and others (2) when examining the effect of change in the criminal procedure, regarding right to further cross-examination, during the transitional period, this Court held that even though it would be for the benefit of the defence, the trial Court could avoid any prejudice to the defence by acting under section 540, Cr. P. C. After holding so a very weighty observation was made which needs to be reproduced :- This section empowers a Court at any stage of inquiry, trial or any other proceeding under the Code, to summon any person as a witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and {{FOOTNOTE}}

(1) PLD 1963 SC 51 (2) PLD )965 SC 681 {{FOOTNOTE}} re-examine any such person, if his evidence appears to it essential for the just decision of the case."

23. (Underlining is mine)

24. In yet another case Rashid Ahmad v. The State (1), this Court made it more clear that "a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for, till then the case is still 'pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused" ; and, it was held that "there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of section 540, Cr.

25. P. C." In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered ; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of section 540, Cr. P. C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. They are Bashir Ahmad v. The State and another (2), and Yasin alias Cheema and another v. The State (3).

26. A seemingly contrary view regarding filling of the gaps taken in Rameshwar Dayal and others v.

27. State of U. P. (4), when properly. Appreciated, in reality, does not appear to be so. It was held that a Judge who has to decide a case should not himself become a witness therein by making a statement on oath before a Court of law and thus "should not fill up gaps left by the prosecution"..

28. The circumstances in which this type of filling the gap was not approved, were totally different.

29. Otherwise, it is pointed out that the learned Judges held that "it is true that under section 540 of the Cr. P. C. The High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be its exercise." I would, with respect, add that if it is essential for the just decision of the case to exercise this power then (although K the conclusion with regard to the finding whether or not it is essential for the just decision of the case has to be reached with due care, but once it is reached) in that case it will not be proper for the Court to hesitate in admitting the additional evidence.

30. At this stage it is necessary to notice another somewhat contrary view expressed in The Crown v.

31. Rafiq Ahmad and another (5), wherein it was held that it is discretionary for the Court under both parts of section 540, Criminal Procedure Code to summon or not to summon a witness. With respect, is pointed out that with regard to the second part if it was meant to convex that the Court (after reaching the conclusion that it was essential for the just decision of the case) had a discretion not to admit the relevant evidence, then this decision has not laid down the correct law.

32. It would also be no correct to say that the process of reaching conclusion whether or not it essential for the just decision of the case to summon an item of evidence is {{FOOTNOTE}} [Here in italic]

(1) PLD 1971 SC 709 (2) 1975SCMR 171

(3) 1980 SCMR 575 (4) AIR 1978 SC 1558

(5) PLD 1955 Bal. 12 {{FOOTNOTE}} merely an exercise of discretion ; because, while appreciating the material or circumstances in which a conclusion has to be reached one way or the of her, the Judge goes through an exercise in which logical constraints are to be followed and he cannot in his discretion follow the course contrary to what the clear logic of the situation demands. In that sense, with respect, it is again pointed out that this exercise would not be a mere exercise of discretion.

33. The use of the expression "appears to it in the second part of section 540 gives ample indication that even when it is not possible to give a conclusive verdict With regard to the item of evidence being essential or otherwise, yet it must in any case at least "appear" to the Court that it is essential, before taking action under the said part of section 540. And for that matter as the observed earlier, it would not be necessary for the trial Court to hold separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision of the case. It would be enough if it appears so to the Court from any material or inference from the material including that which is already available to the Court in any form-admitted evidence of material otherwise lying on the judicial and other files before it. It is in the foregoing context that another judgment namely Abdul Latif and others v. State of Uttar Pradesh (1), has to be viewed. It was held therein that if there is a finding of the High Court that the evidence of any witness is not necessary for just decision of the case, it is a finding of fact and unless there is some substantial error in the judgment of the High Court, the Supreme Court would N not interfere in a case of special leave. I agree with the proposition but would, with respect, add that if the High Court itself commits an error in interpreting the second part of section 540, Cr. P. C. In a manner contrary to what has been stated earlier, it might become a case for interference by this Court.

34. The question regarding so-called bar against filling of gaps, has to be considered in another context also. If it is found to be a salutary rule, then the same, without any distinction vis-a-vis the nature of the offence, should be applicable in all criminal trials. It would be noticed that in murder cases ; the application of this rule, when the controversy is with regard to the filling or otherwise of a gap in the defence evidence by the resort to section 540, and in case denial thereof would result in conviction and no other sentence than death would be likely to be awarded, it would not be possible to canvass than in observation of the so-called rule of avoidance to fill the gaps, evident which is essential for the just decision of the case, would not be admit for this reason. It would not only be the negation of justice in a genera sense, but would also contravene another rule namely that no party should suffer on account of mere technicalities. The procedural law is not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fairplay.

35. It may be added that the language of section 165 of the Evidence Act also lends full support to the view regarding interpretation of second part of section 540, Cr. P. C. It reads 'as follows :- "165. Judge's power to put questions or order production.-The Judge may, in order to. Discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant ; and may order the production of any document or thing ; and neither ,the parties nor their agents shall be entitled to make any objection to any such {{FOOTNOTE}}

(1) AIR 1978 SC 472 question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question : Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved : Provided also that this section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the document were called for by the adverse party ; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149 ; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."

36. The power conferred on the Court by the second part of section 540, Cr. P. C. And the one conferred by section 165, Evidence Act are indeed complementary to each other. If the power under section 165 is so wide as sometimes even to go beyond what is conferred by section 540 then it would not be proper to assume any artificial limitations on the exercise of one or the other power and they have to be treated as supplementary to each other. This view finds support from elaborate reasoning in the Indian case of Jamatraj Kewalji Govan' v. State of Maharashtra (1). Another illustrative case from India might also be noticed. It is Raghunandan v. State of U. P. (2).

37. The Federal Shariat Court in a recent case of Moulvi Hazoor Sax v. The State (3), took serious note of undesirable practice already noticed in this judgment ; namely, the attempt of a party to create false evidence in cases of abduction through affidavits or other statements purporting to be on oath so as to create a defence plea of consent and also observed that such cases could also be taken note of for prosecution under section 193, P. P. C. It was in that connection that the learned Judges of the Federal Shariat Court further observed that in a case where the defence wanted to produce evidence regarding such an affidavit at the late stage, it would not be essential for the Court to admit it in evidence under section 540, Cr. P. C. The argument raised from the defence side was rejected with the observation that "I agree with the learned Additional Sessions Judge that such practice which involves taking away of a minor boy by the brother of Hazoor Bux and then making him to swear a statement under threat or promise should not be encouraged. This is one of the methods of tampering with evidence and tampering should not be allowed." In this background the request of the accused for recalling the victim of the crime to confront him with such an affidavit denying whole incident, after the close of the evidence of the defence was held to have been rightly refused under section 540, Cr. P. C. It may be mentioned that the Court was able to find enough material on the record with regard to the said affidavit so as to reach a conclusion regarding the futility of its being admitted in evidence at that late stage because otherwise too it was not essential for the just decision of the case, to do so. The observation of the Federal Shariat Court in Nisar Ahmad v. The State (4), regarding the so-called filling of the gaps, has to be read subject to the foregoing discussion on this issue. And as also, subject to what the Federal Shariat Court itself observed in another case Muhammad Siddique and another v. The State (5), that "it is not disputed that under section 540, Cr. P. C. The Court is given {{FOOTNOTE}}

(1) AIR 1968 SC 178 (2) AIR 1974 SC 463

(3) PLD 1983 F SC.209 (4) PLD 1983 F SC 485

(5) PLD 1983 F SC 173 {{FOOTNOTE}} unfettered powers to examine any person as a witness at any stage of any enquiry, trial or other proceedings." And it may be added that it becomes - obligatory for the Court to do so when it is essential for the just decision of the case, and the same was done by the Federal Shariat Court itself in the case of Din Muhammad v. The State (Criminal Appeal No, 61/L of 1981, decided on 26-1- 1982), which would be presently examined in another connection.

38. One more aspect needs to be clarified regarding the exercise of power under section 540, Cr. P. C. It is in addition to three main aspects already noticed namely : that, it is divided into two parts one discretionary and the other obligatory ; that, the obligatory one is conditioned by the fact that it should appear to the Court to be essential for the just decision of the case; and that, the rule against filling of the gaps would not operate against the exercise of this power if the case falls under the second part of section 540, Cr. P. C. It relates to a proposition, converse to the so-called rules regarding filling of the gaps ; namely that it should not be exercised so as to prejudice one or the other party. Enough has been said already that if a situation falls under the second part of section 540 clearly and squarely then the question of prejudice would not be entertainable. It is fallacious proposition that this power then should not be exercised. The mandate of law when itself does not admit of any such qualification, the Court cannot introduce it.

39. Another clarification needs to be made that although in this case the power to summon additional evidence regarding nikah when exercised would seem to be filling a gap left in the defence evidence ; and, if ultimately the additional evidence admitted supports the defence, it would not be possible to say that the process has not gone in aid of justice. Same would apply to the prosecution side because the law as contained in section 540, Cr. P. C. (second part) or for that matter in the relevant part of section 165, Evidence Act, does not make any distinction between the prosecution and the defence.

40. At this stage it is necessary to notice the remaining case-law in this behalf. The general trend therein has important bearing on the discussion on section 540, Cr. P. C. It would be of advantage to cite some of the relevant cases found during the search made in this behalf. The following cases except at SI. No, 6 do not support the restricted view of section 540, Cr. P. C.

41. Abdul Ghafoor v. The State and 2 others (1), Mehboob Khan v. The State (2), Barkat All v. The State (3), Muhammad Hussain v. Abdul .Rashid (4), Muhammad Ehsan v. The State (5), Muhammad Ashraf v. Zafar Mahmood alias Master Khaki Zaman and others (6) Gillat Shah v. The State (7), Muhammad Ashiq v. The Martial Law Administrator. Zone 'C' (8), Jewan and 9 others v. The State (9), Abdul Rashid v. The State (10), The State v. Abdul Hamid and another (I1), Kanhu Charan Saraf and another v. Radhamohan Padhi (12), Saghir Hussain and another v. The State (13), Ram Jeet and {{FOOTNOTE}}

(1) PLD 1983 Lah. 139 (2) PLD 1979 Lah. 691

(3) PLD 1979 Lah. 740 (4) PLD 1975 Lah. 1391

(5) PLD 1975 Lah. 1431 (6) PLD 1967 Lah. 1045

(7) 1982 P Cr. L J 933 (8) 1980 P Cr. L J 97

(9) 1980 P Cr. L J 570 (10) 1980 P Cr. L J 1119

(11) 1970 P Cr. L J 384 (12) AIR 1965 Orissa 219

(13) AIR 1958 All. 312 {{FOOTNOTE}} others v. The Stale (1), Mukti Kamar Ghosh v. State of West Bengal (2), Syed Muhammad v. K. C.

42. Raman and others (3) and Ramjiwan v. Maddy Khan and another (4).

43. As a result of the foregoing discussion it is essential to remand the case for fresh trial. But it is also essential to examine in detail some other important aspects involved in the cases like the present one, particularly after the enactment of the Family Courts Act (XXXV of 1964) and Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979.

44. One such aspect relates to the possible repercussions on the family and social life of the parties concerned particularly the female side; and the other is the trend and effect of different facets of the case-law which has developed in Pakistan in connection with this branch of administration of justice.

45. The offence of Zina and for that matter abduction and Zina, whenever they are combined in the same case, is not like those offences which affect the parties for the time being and ordinarily do not produce permanent results for them and others as well. The enforcement of Islamic law of Zina and related crimes is an attempt to inculcate Islamic values notwithstanding the influences of western culture and rules in this field. The mass media and modern techniques of dissemination of material, relatable to the temptation to commit these crimes, are well-known. These laws do not even profess to deal with the on-slaught from these otherwise uncontrollable sources. One view of dealing with this clash of law and influences might be to look at this crime with some amount of compassion but that will not stop or reduce it and innocent victims would continue to suffer.

46. Civilized societies have always stuck to the classical rule of need for punishing the crime. In our country also the legal mandate is to punish the crime and in doing so, no allowance can be made for the above-mentioned influences in the matter of interpretation of law, the appreciation of evidence (say when giving finding of guilty or otherwise), or even in the measure of punishment- when it is fixed as the only one or minimum one. In individual cases however where a particular offence is punishable with varying periods of imprisonment, amounts of fine or numbers of stripes in whipping, the Court when allowed discretion by law can and might legitimately take into account the afore-discussed features as a ground of mitigation-provided that elements of cruelty, undue advantage or unusual behaviour are not involved. Nevertheless in the context of this vital question, the bigger unfortunate controversy would remain to be resolved for the social thinkers, religious scholars and law-making and enforcing agencies; in that, how to stop these influences and acknowledge them in defining and punishing the crime; and, if the society is unable to do so mainly or at least partly because of foreign controlled media, then how to absolve itself in connection with the temptation and easy opportunity to commit this type of crime. The Courts in either way have to administer law as indicated above.

47. In Pakistan, as the law now stands, a redeeming feature in administering this branch of criminal justice, is that the institution of legitimate valid marriage not only operates as a defence mechanism vis-a-vis the rigours of the law; but also, as a cushion against the vices of present day free social norms and influences. The Court's duty though, in dealing with the defence of marriage is very delicate. On the one hand, it has to caution itself when {{FOOTNOTE}}

(1) AIR 1958 All. 439 (2) 1975 Cr. L J 838

(3) (1964) 1 Cr. L J 100 (4) 1952 Cr. L J 1012 {{FOOTNOTE}} dealing with this defence plea against breaking the well-known rules of appreciation of evidence in the mistaken zeal of being liberal and on the other, it has to understand that by its undue restraint the faith in the institution of marriage itself might not be affected.

48. It is in this context that various aspects of the defence of valid marriage are to be noticed. The new law, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has added vast dimension to the plea of marriage as defence in a case of Zina or Zina-bil-Jabr liable to Hadd offence. It is not involved in this case, therefore, the discussion thereon is being avoided. On the charge of Zina or Zina-bil-Jabr liable to Tazir offence also the law, without any doubt, acknowledges a valid marriage as a good defence. Relevant parts of sections 4, 6 and 10 of the Ordinance read as follows : "4. Zina.-A man and a woman are said to commit `Zina' if they wilfully have sexual intercourse without being validly married to each other.

6. Zina-bil-Jabr.--(1) A person is said to commit Zina-bil-Jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely :-

(a) against the will of the victim,

(b) without the consent of the victim,

(c) with the consent of the victim when the consent has been obtained by putting the victim in fear of death or of hurt, or

(d) with the consent of the victim, when the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married. Explanation . ............

(2) ................

(3) .............

(4) ...........

10. Zina or Zina-bil-Jabr.-(1)........................

(2) Whoever commits Zina liable to Tazir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes and shall also be liable to fine.

(3) Whoever commits `Zina-bil-Jabe liable to Tazir shall be punished with imprisonment for a term which may extend to twenty-five years and, if the punishment be one of imprisonment shall also be awarded the punishment of whipping numbering thirty stripes."

49. Validity of the marriage is a sine qua non for the success of the defence of marriage in case of Zina or Zina-bil-Jabr, liable to Tazir. This Court in Ghulam Shabir Shah v. The State (1) has already ruled in this behalf that the word "validly" cannot be treated as a mere surplusage and has to be given full meaning and effect. "Irregular" marriage therefore affords no protection ; as, being not a "valid" marriage. It may be added that al "doubtful" marriage in so far as factual aspect is concerned for the same {{FOOTNOTE}}

(1) 1983 SCMR 942 {{FOOTNOTE}} reasons, would not afford any protection. Here a reference to the comparative provision regarding zina liable to Hadd offence, would illustrate the point. While section 5 of the Ordinance, provides that a person who is not married to "and does hot suspect himself to be married" to the member of the opposite sex with whom the zina is said to have been committed, is liable to Hadd; if of course, certain other conditions are satisfied. Thus the success of the plea that accused "suspected himself to be married" to the person concerned will be a defence for him to avoid the Hadd. No such suspicion, factual or legal, on the part of the accused in the offence of zina liable to Tazir, has been provided as defence in sections 4 or 6(1) or 1 of the Ordinance. It is not necessary to go into the reasons for this difference. The law of Tazir is very clear on the point.-One who raise this plea would have to establish the same in law and fact beyond an suspicion about it. If there is failure on his or her behalf for any reason whatsoever to produce evidence, it being the mandate of law as an important part of definition of the offence, once seriously and genuinely raised (with some foundation and not for the purpose of delay and vexation which features are always discoverable by exercising judicial mind), the Court .Would be duty bound to examine it in depth, even if it involves action under section 540, Cr. P. C. (first and/or second part) and similar other provisions including those relating to coercive measures for production of evidence. It needs to be observed however, that keeping in view sections 105 and 106 of the Evidence Act, in the context of the Muslim law attempted to be codified, it is not the intention of this law that merely because of the inclusion of the exception in the very fabric of the definition ; its exclusion is the burden of the prosecution. It being an exception involving a special type of knowledge, the burden will be on the person pleading it. But in the context of section 540, Cr. P. C this burden without shifting from the person concerned, would also be interjected in the duty under section 540 (second part), Cr. P. C.; because, its resolution will be essential for just decision of the case. The relevant precedent cases while furnishing background material for this exposition, will have to be seen and understood only subject thereto and not in derogation thereof. It is a major point of emphasis in this crime that the question of valid marriage when raised as a genuine plea in a trial for offence of zina liable to be punished as tazir, it has to be approached with extreme care and circumspection. The evidence and material regarding Nikah should be of high quality, incapable of admitting any doubt. It is on account of this reason and due to the constraint of the newly enacted law that it became necessary to make a statement of caution before noticing the case-law in this behalf. Some of these cases are under old law but are relevant in connection with the question of marriage, its validity and proof in so far this defence against rape, kidnapping and abduction, is concerned.

50. They are : Muhammad iqbal v. The State (1) ; Abdus Sattar v. Muhammad Ashraf (2); Arif Hussain and another v. The State (3), Afadat and others v. The State (4) ; Iftikhar Nazir Ahmad and others v.

51. Ghulam Kibria and others (5) ; Habibullah and 3 others v. The State (6) ; Manzoor Hussain and another v. Manzoor Hussain (7) ; Bachinoo v. Abdul Hakim (8) ; Falak {{FOOTNOTE}}

(1) PLD 1983 F SC 9 (2) PLD 1982 F SC 157

(3) PLD 1982 F SC 42 (4) PLD 1982 F SC 52

(5) PLD 1968 Lab. 587 (6) PLD 1973 Kar. 609

(7) PLD 1974 Lah. 202 (8) 1975 P Cr. L J 732

(25) PLD 1976 SC 298 {{FOOTNOTE}} Sher v. The State (1) ; Mst. Qadul and 7 others v. Allah Bachaya and 2 others (2) ; Mst. Alfat Bibi and another v. The State (3) ; Umaid Khan v. Akbar (4) ; Ghulam Muhammad v. Fakir Muhammad etc.

(5) ; Muhammad Anwar v. Muhammad Suleman (6) ; Dr. A. L. M. Abdullah v. Rokaya Khatoon and another (7) ; Muhabat v. Abdullah and 9 others (8) ; Muhammad Aslam v. Ghulam Muhammad Taslim (9) ; Muhammad Inayat v. Chaudhry Muhammad Salim and 2 others (10) ; Nazar Qasim v.

52. Mst. Shasta Parveen (11) ; Habib v. The State and 2 others (12) ; Mst. Ghulam Fatima and S others v.

53. Mst. Anwar alias Anwari Begum and another (13) ; Mst. Ferhat and another v. The State and 2 others

(14) ; Mst. Fatima and another v. S. H.O Police Station, Golra Sharif and 2 others (15) and similar other cases not noticed here but taken note of in Haji Nizam Khan v. Additional District Judge, Lyallpur and others (16).

54. In addition to the aforementioned case-law from the Federal Shariat Court and the High Courts of Pakistan, there are some decisions by this Court which would furnish more material for assessing the social conditions regarding the crime in question particularly when matrimony is involved therein, as a frivolous or genuine plea ; and when genuine, whether correct or unfounded plea. The most recent case as already noticed is of Ghulam Shabir Shah v. The State (17). This case has to be treated as an authority for the law declared on an important plea in these cases and would also govern the relevant question of the efficacy of the plea of Nikah in this case. The other Supreme Court cases, in the general context, are : Ali Nawaz Cardezi v. Lt.-Col. Muhammad Yusuf (la) ; Abdul Basit v. Union Council, Ward No, 3, Peshawar Cantt. And another (19) ; Mst. Bakshi v. Bashir Ahmad and another (20) ; Muhammad Rafiq v. Muhammad Ghafoor (21) ; Shaukat Ali v. Altaf Hussain Qureshi and another (22) ; Muhammad Nazir v. The S.H.O. Police Station, Shahpur and 3 others (23) ; Murad and others v. The Resident Magistrate, Pakpattan and another (24) and Muhammad Nawaz v. Rab Nawaz and another (25).

55. Some features of general type in all these cases and others (serveral whereof have already been noticed), which run through them as thread-lines are : Irrational and sometimes un/Islamic customs/attitudes, where parents refuse to recognize legitimate and rational exercise of discretion and {{FOOTNOTE}}

(1) PLJ 1974 Cr. C (Lab.) 181 (3) PLD 1972 Lah. 121 (5) PLD 1975 Kar. 118 (7) PLD 1969 Dacca 47 (9) PLD 1971 Lah. 139 (11) 1979 CLC 462 (13) 1981 CLC 1651 (15) PLD 1978 Lah. 1436 (17) 1983 SCMR 942

(19) 1970 SCMR 753 (21) PLD 1972 SC 6 (23) 1973 SCMR 351

(2) PLD 1973 B J 48

(4) PLD 1974 Lab. 445

(6) PLD 1978 Lab. 1330

(8) PLD 1970 Lah. 303 (10) PLD 1979 Lab. 154 (12) PLD 1980 Lab. 791 (14) 1982 P Cr. L J 1152 (16) PLD 1976 Lab. 930 (18) PLD 1963 SC 51 (20) PLD 1970 SC 323 (22) 1972 SCMR 398 (24) 1973 SCMR 575

(25) PLD 1976 SC 298 {{FOOTNOTE}} Judgment by female youth of not only mature age but also mature understanding, in matter of her desire and selection of a mate : Young girls immature in age or if mature in age immature in understanding inveigled by Shatanik overtures, tricks and sometimes pleading and traps from which after the first act it becomes difficult for them to extricate themselves ; Similar cases where the first act of abduction or rape is by use of force and thereafter there is marked tendency in some females of eve respectable families, to avoid going back to the parents ; Suffering on account of the social antagonism that they invariably face after their return to the parents ; In the earlier mentioned situations it happens at least in a few cases, that the female is resigned to the fact to live with the abductors as a concubine and, rarely as wife ; Wherein, in order to frustrate even genuine remorse of the accused and his resort to a lawful marriage, the parents on account of false prestige and their own social conditions, try to falsify such a marriage ; Attempt in innumerable cases to misuse the procedures provided by law for other purposes : for example as already mentioned like the preparation of false affidavits and lodging a farcical proceedings so as to create evidence of consent, Nikah or otherwise-there are cases in the above resume where forgeries in so-called Nikahnama were also demonstrated ; and Lastly in many cases of this class of crime, females including those of very tender age have been subjected to acts of cruelty besides being treated by the accused persons like chattel.

56. There are other features also of relevant type which are discoverable from the afore-recorded array of cases. It is once more emphasised that these cases excepting of course those in connection with which observation otherwise as laying down a law has been made, have been mentioned as a background material to understand the conditions and social circumstances out of which the crime of the type involved in cases like the present one, arise and the manner they have been dealt with in various forums. It would help the trial Courts in understanding the prevalent practices and in some matters prejudices also and take due note thereof when coming to conclusions regarding controversies of facts. These cases have been mentioned also to illustrate the present and past trends in this type of crime and how it has been dealt with in varied circumstances. So as to avoid impressions of approval or otherwise, no further comment is necessary.

57. The Evidence Act as interpreted and applied by this Court in Muhammad Azeem v. The State (I) will also have to be applied to these cases. In doing so, whenever necessary and when there is absolutely no other option left even after exhausting the power under section 540, Cr. P. C. But subject to the nature of proof about Nikah in these cases, as already discussed, resort may be had to the wider scope of the word "proved" in the definition thereof under section 3 of the Evidence Act, as interpreted by this Court in The State v. Habibur Rehman and others (2) in Said Wali v. Yaqoot Khan and another (3) and also, in Muhammad Aslam alias Achha etc. v. The State Criminal Appeal No, 191 of 1976, decided by this Court on 1-10.1983.

58. Far-reaching consequences of wrong findings of fact on plea of marriage,' either way can well be visualized. Verdict in the affirmative not only gives {{FOOTNOTE}}

(1) 1983 SCMR 1119 (2) PLD 1983 SC 286

(3) PLD 1983 SC 440 {{FOOTNOTE}} legitimacy to conjugal intimacy and the off-springs but ; also, binds two persons in a solemn and pious bond which, in turn in our faith, creates rights and obligations of such permanent nature that the life in this World and Hereafter also are influenced. And similarly verdict in the negative amongst others, can have serious repercussions on the questions of legitimacy of conjugal contact, liberty/life of the accused, the life of the off-springs, in addition to the social complications for the future of the concerned individuals.

59. Therefore it is on account of the foregoing reasons that a very delicate duty of recording, admission and appreciation of evidence falls on the two Courts of fact namely the trial Court and the Federal Shariat Court. As held by the Supreme Court in B. Z. Kaikaus v. Federal Government of Pakistan (1) and Abdul Hameed v. The State (2) this Appellate forum functions as a Bench of the "Supreme Court" and follows the rules and practice thereof. And keeping in view the precedent law on controversies of factual nature the Supreme Court ordinarily is reluctant to interfere, unless a question of law or principle of law also arises. It is thus all the more necessary for the two Courts below to make every effort to reach the mark of perfection on the questions relating to facts, regarding the plea of valid marriage. Mere surmises and casualness where cold logic should be the rule might, a would be presently demonstrated by examining the interaction of section 3 of Ordinance which gives it the overriding effect and section 5 of the Family Courts Act which gives exclusive jurisdiction to the Family Courts on questions of marriage, prove harmful in so far as the working of this difficult branch of judicial administration is concerned. The apprehended erosion can, however, be checked if all necessary implications are kept in view. This very case is illustrative of some of them. The accused has pleaded valid Nikah as the defence against the charge of zina- bil-jabr punishable as tazir. The probability is that unless there is compromise, both are likely to deny each other's claim in so far as the statements in Court are concerned ; with E the distinction that while she deposes on oath, the accused though permitted by law to do so (see section 340 (2), Cr. P. C.) ordinarily does not enter the witness-box and for this failure no presumption can be raised against him. But if she fails to appear as witness unless there is explanation or she dies, a presumption can be raised against the prosecutrix.

60. Muslim marriage is not an act of secrecy. Any action to keep it secret will give rise to some adverse legal implications particularly when the female I of tender age. When in secrecy she might not be able to raise proteston account of fear (particularly if she is of tender age) or due to its utter futility as no help will be available in places of secrecy. Previous admissions of the prosecutrix in favour of a valid marriage if proved as voluntaril made particularly when before a Court of law but in proceedings which are normal and genuine, will also have important bearing. On the contrary when it is established that false evidence of previous admission was created by the accused in farcical proceedings it might be used against him in the negation of the plea of marriage, as is permissible under section 8 of Evidence Act. It is important for the trial Courts to examine as to why (in the circumstances of each case) effort is made to solemnise a marriage in secrecy at an odd place, in presence of outsiders to the exclusion of the near ones particularly in cases of "minor" girls of such tender age that the Child Marriage Restraint Act, 1929, provides it as a crime. While doing so it would also need serious consideration why all such measures were adopted and why the adult male {{FOOTNOTE}}

(1) PLD 1982 SC 409 (2) PLD 1983 SC 130 {{FOOTNOTE}} could not wait till at least it is not a crime to marry the girl when she has attained more maturity and to see also whether a delay would have changed the so-called consent. The answers to these questions would, besides begin revealing, throw light on the various trends in this type of crime. It is not necessary in this case to re-examine the larger question as to what would be the position now, in view of the new laws and experience gained in recent years, regarding such a marriage with a "minor" female of tender age. In a proper case the effect of these laws and the law on various levels of age, for marriage and exercise of option of puberty, would be examined in more detail ; and in the context of certain relevant observations made in the case of Mauj Ali v. Syed Safdar Hussain Shah and another (1). Direct and primary and in its absence secondary evidence can be led of a recent marriage. If it is not forthcoming, there must be a tangible explanation in that behalf. Once it is led, and admitted, it might be expected of the other party when afforded opportunity, to rebut the same ; if he or she insists in its denial. Such further opportunity can be afforded under section 540, Cr. P. C. This type of trial in reality would be of mixed nature-adversary as also inquisitorial.

61. Sections 540, Cr. P. C. And 165 of Evidence Act are, proof positive of this aspect of our law of criminal procedure. It does not expect the Judge to sit mentally unconcerned when the adversaries do the exercise of contests. Ordinarily be should also prepare a contemporaneous memorandum of the proceedings in the Court in his own hand which should form part of the judicial record. He has to discover the truth even if one or the other party or both are interested in withholding it. An analogical reference can here b made to the well-known decision of this Court in Syed Ali Bepari v.

62. Nibara Molla and others (2) which though rendered in a different context throws a light on an adversary contest in a case of parallel versions and in that context; as also, on the duty of the Court not to be deterred, in discovering the truth and reality. The interpretation of the relevant legal provisions in this behalf would not be complete without taking note of the Muslim law on the duty of a Judge on this question, which aspect on the authority of Muhammad Bashir v. The State (3), can also be a supporting consideration. The Judge is required (when the parties avoid this) to summon important witnesses who would clarify the main issue or an ancillary matter. It is in this connection that neighbours were often summoned by the Court if omitted by the parties. (See Akhbar-ul- Quzat by Waki` Bin Khalf, Vol. II, p..21 (1366 H. Egypt). The same effect is Fatawa-i-Alamgiri, on the duty of a Judge in cases of theft-see vol. II, p. 173 (1398 H. Quetta), Doctor Muhammad Abdul Jawad Muhammad a scholar in Islamic Law and administration of justice, in his work on Islamic Sharjah and Law (1977 Alexanderia) has made a comparative study on this question of various legal systems in the civilised world. According to his study also Islam does not permit a Judge to abdicate his functions in mistaken zeal of impartiality, in favour of the parties as if they have an exclusive domain to engage in an inter se fight and argumentation, only. H is not a mere mute and blind arbiter to declare the winner in the fight. He must actively participate in the proceedings.

63. Exaggerated and wrong notions of such lack of concern (in the so-called impartiality) is being criticised; by some western jurists also and is being progressively opposed in the middle eastern countries. {{FOOTNOTE}} (1)1970 SCMR 437 (2) PLD 1962 SC 502

(3) PLD 1982 SC 139 {{FOOTNOTE}} The Nikah marriage can also be proved in absence of direct evidence thereof amongst others by admissions, the acknowledgement of off-springs as legitimate, and amongst other modes, cohabitation as man and wife for a period of time known to others. Though some of them might not be possible in this case but it will be unlikely that the Nikah as alleged having taken place recently, there would be no direct evidence to be produced in Court.

64. The implications of a finding on the basis of mere doubt (which has already held is not permitted by the relevant law), are far-reaching. Such a finding on mere suspicion or doubt or to put it more formally of "two equally strong possibilities"-implying the existence as also he non-existence of the fact in question, as was held by this Court in Sher Hassan v. The State (1), would not be permissible regarding the plea of 'valid marriage' in a case of zina liable to Tazir. Such a finding with both negative and positive implications if given by the Court, besides being against the rationale in the case/ of Ghulam Shabir Shah, will create imppossible situations for the parties, and their children and next-of-kin for all times to come. And in particular it would be so, with the weaker sex. She might have to live a life of drudgery and always in the state 'of impossibilities in the affairs of matrimony for no fault of her in the matter. And when she marries, there is fear of charge of adultery, because of the above discussed finding with its uncertain implications. The suggestion that the Family Court might fill the gap and remove uncertainty, as will be explained presently, is not as practicable as it looks on the face.

65. In order to illustrate the point further, at this stage it is not out of place to take note of another decision of the Federal Shariat Court in a similar case, which also came up in the Supreme Court.

66. It is Din Muhammad v. The State Cr. A. No, 61-L of 1981 decided by Federal Shariat Court on 26-1- i982, in a similar background of law and facts. It also involved the plea of marriage as defence in a case of abduction and zina liable to Tazir. It will be instructive to reproduce the relevant parts of the judgment therein : "Arrora (P. W. 5) father of Mst. Khurshid Bibi gave the F. I. R. At 5-40 p. m. In Police Station Khoshab on 17-10-1979 stating that his daughter Mst. Khurshid Bibi (P. W. 3) was taken away by force by three persons Le. Din Muhammad, Muhammad Latif and Muhammad Asgbar. The first two of these persons went to the cotton field where she was picking cotton, dragged her to the car and seated her in the back seat of the car which immediately was driven away despite hue and cry raised by her. She was recovered when she was found along with the appellant at Bus Stand of Chak No, 46 M. B. On the 23rd October, 1979. The police arrested the appellant also then and there.

67. The police produced Mst. Khurshid Bibi before the Magistrate on 24-10-1979 for her examination under section 164,. Cr. P. C. But that statement is not on record. She was also produced for medical examination on the same day before Lady Dr. Shamim Barlas who found her to be accustomed to sexual intercourse. According to her, the hymen was absent and there were old tears at 6 & 9 O'clock position. {{FOOTNOTE}}

(1) PLD 1959 SC 489 {{FOOTNOTE}} The vagina admitted two fingers and examination was not painful. Labia majora and minora were pink and loose, breasts were well developed and firm. She also found that there was no mark of struggle on any part of the body.

68. Mst. Khurshid and Muhammad Yaqoob were produced in support of the prosecution story about forcible abduction while Mst. Kurshid made a statement involving the appellant in a case under section 10(3) of the Ordinance since she stated that she had been subjected to zinabil-jabar.

69. The appellant in his own statement said that he married Mst. Khurshid Bibi with her free consent. He filed a nikahnama. This was suggested to Mst. Khurshid Bibi as well as to Arrora (P. W. S) her father but both of them denied the marriage.

70. It has come on record that Mst. Khurshid Bibi had filed a suit for jactitation of marriage which was decreed in her favour. Judgment of this case has been placed on record.

71. The appellant also placed on record the statement of Mst. Khurshid Bibi made before the Family Court as well as the opinion of an expert of questioned documents according to whom the thumb- impression on the nikahnama was that of Mst. Khurshid Bibi.

72. The learned Sessions Judge found that the charge under section 11 was not proved. Despite the fact that there was no evidence to bring the case within the scope of section 16, he convicted the appellant under -- section 16. He convicted him under section 10(2) which means that he was convinced that the appellant committed zina with Mst. Khurshid Bibi with her consent.

73. During the arguments the learned counsel tried to show from the nikahnama as well as the Expert's opinion before the Family-Court that the appellant was married. He also tried to criticise the judgment of the Family Court in the above suit. But we are of the view that the judgment cannot be considered since being a piece of evidence it ought to have been put to the appellant in his statement under section 342, Cr. P. C. Since he had not been given an opportunity to explain it, we cannot rely for our findings on -this judgment. The statement of Mst. Khurshid Bibi before the Family Court could be relevant only under section 145 of the Evidence Act for contradicting her but no part of this statement made in that Court was put to her. In these circumstances we cannot take into consideration that document. The other document also cannot be considered since it was the duty of the appellant to prove his nikah before the trial Court also.

74. The learned counsel argued that the nikahnama itself is .a public document. It is not necessary for us to give a considered opinion on this question but the fact remains that in view of the denial by Mst. Khurshid Bibi of the alleged marriage and of her being a party to the nikahnama, the factum of nikah could have been proved by the evidence of at least those who are signatories to the nikahnama."

75. That case was remanded to the trial Court for recording direct evidence on nikah and also for consideration of the decree for jactitation of marriage, by the Family Court passed in favour of the prosecutrix therein.

76. Some observations are necessary with regard to certain remarks by the Federal Shariat Court in the judgment of the cited case. It is noted therein that the issue of jactitation of marriage having been decided by the Family Court had been brought in appeal before the District Budge by the accused presumably to show that the decision of the Family Court was not correct and that a valid Nikah had been established in fact and law. A request was made to the Federal Shariat Court for adjournment so as to await the decision of the Appellate Court regarding the final position under the Family J Courts Act regarding the Nikah. This adjournment was refused on the ground that it was based on a mere hypothetical proposition ; namely, that if the accused succeeded before the forum provided by the Family Courts Act it would react on the results of the criminal cases. This question has to be examined in the present case also. The approach of the Federal Shariat Court regarding the question raised before it in that case as it was based on proceedings under the Family Courts Act, with respect, it is pointed out, was not merely a hypothetical one so as to be ignored.

77. Another remark in that judgment that when the alleged Nikahnama was produced by the counsel for the accused, it should not have been exhibited by the trial Court without formal proof thereof as according to the learned Budges "there was no visible indication about the marriage of the parties". If it was a frivolous plea, no further comment would be necessary but in case it was otherwise, then the Nikahrama could have been exhibited and placed on record with a statement of the accused person himself in that behalf. And if it was also essential for the just decision of the case, regardless of the fact whether the accused would have produced evidence in connection with the Nikahnama, it would have become the duty of the Court under section 540 (second part) to summon the evidence indicated in the Nikahnama, itself. This is what was ultimately done by the learned Budges of the Federal' Shariat Court. They felt that in the circumstances of the case it was necessary that the trial Court should record full evidence of the appellant in defence and he should be provided with an opportunity "to prove his nikah independently of the proceedings, before the Family Court".

78. In so far as whether or not the proceedings before the learned trial Judge in the criminal Court were assumed by the Federal Shariat Court as independent of the proceedings before the Family Court, this question would require elaborate and serious consideration.

79. Yet another remark made in the said judgment by Federal Shariat Court needs to be noticed. It is to the effect that the judgment of the Family Court "though not binding is relevant". It is yet to be seen whether on account of the interaction of the two relevant laws and the specific provisions contained therein regarding the jurisdiction of the two forums, and the prevailing view regarding the application of the Evidence Act, the finding of the Family Court in that behalf would not be binding.

80. Although the aforenoted questions are a part of the other larger controversy in this case which would be presently attended to, it is proper here to mention that the Family Courts Act, 1964 was enacted, as its preamble and the Schedule show, to create a special court for the decision of the `matters' mentioned therein. The provisions of the C. P. C. And Evidence Act were generally speaking not made applicable to the trials before the Family Courts. And instead, the Court was given a real inquisitional Jurisdiction by introduction of a special procedure including an obligatory effect to discover the possibilities of amicable settlement. It would require further examination whether the condition in Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 regarding complaint by a specified person, was not intended to acknowledge the value of such settlement in disputed cases on Nikah as well.

81. As has already been discussed, in this case the trial Court failed to perform its duty to record and admit necessary evidence and also failed to act under section 540, Cr. P. C. First and also second part. The approach of the Federal Shariat Court in appeal was primarily conditioned by what was found as evidence on record and the findings of the trial Court thereon. Moreover, with respect, it did not approach the special plea of valid nikah raised by the defence in its true perspective and proceeded on such suppositions and conclusions which as explained and discussed in this judgment, are not permissible under the relevant law. The case should have been remanded by Federal Shariat Court to the trial Court for fresh trial as was done by it in Din Muhammad v. The State already noticed ; but in accordance with the law as discussed in this judgment. It has to be ordered accordingly.

82. The matter, however, with the above order would not end. It is also essential to resolve another controversy which has presented itself when studying another branch of law (the Family Courts Act, 1964) during this preparation of this judgment. It relates to the interaction of the plea (and decision thereon) of valid nikah as defence in the case of zina under the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 and the provisions of the. Family Courts Act, 1964 ; which confers exclusive jurisdiction on the Family Court to decide all natters included in the Schedule thereto which are as follows : "5. Jurisdiction.-Subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961 the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule.

83. Schedule.--In the Schedule the following matters are mentioned : "(1) Dissolution of marriage ;

(2) Dower ;

(3) Maintenance ;

(4) Restitution of conjugal rights ;

(5) Custody of children ;

(6) Guardianship, and

(7) Jactitation."

84. It is also necessary to reproduce here section 3 of the Offence of Zina (Enforcement of Hudood)

85. Ordinance, 1979. It reads as follows :- "3. Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding contained in any other law for the time being in force."

86. In the light of even the bare study of section 5 and the Schedule to the Family Courts Act and section 3 of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979, the following questions would need to be answered : "(1) When a superior Court or for that matter (finally) the Supreme Court decides the issue of nikah in a criminal case of zina, will the Family Court be able to decide it again ; and whether principle of general res judicata applied in recent cases on Rent Restriction law and Settlement writ cases vis- a-vis the civil Courts, will not be attracted.

(2) Whether the judgment of one or the other forum will be relevant under the Evidence Act. If so which forum will have precedence at trial level.

(3) What are the implications of section 3 of the Offence of Zina (Enforcement of Hudood)

87. Ordinance of 1979 vis-a-vis section 5 read with Schedule of the Family Courts Act ; whether and how they react on each other.

(4) When the plea of valid nikah is raised before a criminal trial Court what are its options?

(i) Stay criminal case till decision by Family Court of suit already pending.-Whether the Supreme Court ruling in the case of Muhammad Akbar v. The State and another (PLD 1968 SC 281) will not cover the situation.

(ii) If suit is not pending whether it is possible to ask the party raising plea to file one ; and in case of refusal to do so can a presumption be raised against the party concerned, if so of what type?

(iii) If direction is not complied with, can a reference be made to the Family Court?

(iv) Whether an interpleader suit can be filed in the,Family Court or can a case be sent for opinion thereof?

(v) Should it transfer to itself the suit under Family Courts Act if pending/ instituted and decide both matters contemporaneously ? And

(vi) Whether the guidelines given by this Court in the case of Nur Elahi v. The State PLD 1966 SC 70 should be followed by the trial Court by way of analogy?

(5) If in the further appeals/writ petitions, results are different in the Federal Shariat Court and the High Court, how the conflict is to be resolved and finality reached?

(6) Whether the law laid down by the Federal Shariat Court in the case of Din Muhammad v. The State (Criminal Appeal No, 61/L of 1981, decided on 26-1-1982), already noticed, regarding the nature and effect of decision by the Family Court on questions of nikah, on the same plea before the trial Court in the criminal case, is correct ; and lastly

(7) Whether the provisions in Qazf Ordinance, 1979 regarding requirement of a complaint by the specified person, for launching prosecutions thereunder, has any bearing on the foregoing questions."

88. Although no direct case is available resolving any of those questions, enough precedent law has been discovered which would throw some light on them. The Family Courts Act, 1964 provided for speedy trial of family matters including matrimonial disputes. Now for nearly two decades, its working, has been streamlined through precedent law also.

89. This branch of case-law (and the other referred to earlier), dug out with the assistance of the concerned Court official, not having been found enough to answer these questions we also called upon the two learned counsel appearing for the parties in this case to assist the Court in that behalf. They as stated by them having worked together on these questions have taken a joint position which has been stated and explained by the learned counsel for the respondent accused as follows :- "That the judgment in a criminal trial can never be relevant in a civil case before a civil Court even if it is in respect of the same controversy and between the same parties. Sections 41 to 44 of the Evidence Act together with Monir's Commentaries thereon in its Vol. 1, 1974 Edition, at page 572 were also referred in this behalf ; with a further statement that section 41 of the Evidence Act read in the context of the West Pakistan Family Courts Act, 1964, clearly implies that the Family Court, when determining the questions of marriage under the said Act, shall have to be treated as a competent Court exercising matrimonial jurisdiction. But the judgment by a- Family Court, in similar circumstances, will be relevant during the criminal trial in cases of zina only if the plea of a valid nikah is involved before both the forums; with the further condition that the parties concerned therein were or are admittedly the husband and wife or there is an allegation/denial/ assertion of the relationship of husband and wife. In other words, it was further explained, the judgment of the Family Court would not be relevant against other accused persons standing trial for an offence in which the relationship of husband and wife is not at issue."

90. Learned counsel took up the position that : "Section 5 of the Family Courts Act read with item 7 of Schedule (Jactitation of Marriage) does not confer exclusive jurisdiction on the Family Court to decide the existence or otherwise of a valid marriage when the same is disputed and is the subject-matter of a trial before a criminal Court as a disputed issue. In this behalf support was sought from the provisions of section 21 of the Family Courts Act which provides that nothing in that law shall affect the provisions of the Muslim Family Laws Ordinance, 1961 or the rules framed thereunder." Notwithstanding the foregoing position regarding jurisdiction of the Family Court taken by the learned counsel, it was however vividly realised and acknowledged that, "the questions raised earlier present a formidable difficulty ; which it was further asserted could not be resolved except through proper amendments to be made in the relevant laws. It will make it possible in cases like the present one, that the trial of the issue on the plea of valid marriage in matrimonial jurisdiction, as also; its trial by a criminal Court when it is involved therein as a genuine issue, should be held by the same person exercising the power and jurisdiction of both the forums. It was accordingly opined that even two separate trials would not be necessary, as is provided in a comparable law namely section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 which apart from containing a penal provision also provides for dissolution of marriage. It was suggested that an amendment be made in section 14 so as to make it applicable to not only the cases where the relationship of husband and wife is admitted but also to those cases where it is asserted and denied. The concrete proposal being that when in a criminal trial a man accused of zina pleads the defence of valid marriage and the prosecutrix denies it and makes an allegation of zina, both of them should be made to go through the processes of Iran as provided in section 14. This might, it was surmised obviate the need for holding separate or joint trials regarding proof or otherwise of the marriage also."

91. Regarding simultaneous pendency of two trials on the same issue of marriage one before Family Court and the other before the criminal Court it was suggested "that the proceedings before the criminal Court could be stayed so as to await the decision by the Family Court provided it is held that the judgment of the Family Court would be conclusive and binding on all parties as also the Courts concerned by virtue of the application of section 41 of the Evidence Act. A difficulty however was expressed in cases when the two Courts are situate in two different districts of the same province or in two different provinces. As to the complications regarding examination of witnesses not cited before one or the other Court, it was suggested that in so far as the criminal Court is concerned, it could resort liberally to the provisions contained in section 540, Cr. P. C."

92. When asked whether any case-law is available and/or to be cited, the answer by the learned counsel was in the negative, except of course the reference already made to Monir's Commentary on section 41 of the Evidence Act. The particular part whereof with the footnotes indicating the relevant laws and case-law is reproduced below :- Evidence Act, section 41 : "Relevancy of certain judgments in probate, etc. Jurisdiction.--A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person, any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

93. Such judgment, order or decree is conclusive proof- That any legal character which it confers accrued at the time when such judgment, order or decree came into operation ; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment (order or decree) declares it to have accrued to that person ; that any legal character which it takes away from any such person ceased at the time from which such judgment (order or decree) declared that it had ceased or should cease : and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment (order or decree declares that it had been or should be his property."

94. Monir's Commentary (page 572)

95. Matrimonial jurisdiction.-Courts in Pakistan are invested with matrimonial jurisdiction under various special enactments. In addition to the ' jurisdiction under these special Acts, an ordinary civil Court has, under the general law, jurisdiction to decide questions of matrimonial status between Hindus and Muhammadans- according to their respective personal laws, but such adjudications are not judgments in rem. Thus, where, a non-Christian, gets an ex parte decree for restitution o conjugal rights against B, the decree will be binding between A and B, Act IV of 1869 (Divorce Act) ; Act XV. Of 1872 (Christian Marriages Act) ; Act XV of 1865 and Act XXXVIII of 1920 (Parsi Marriage and Divorce Act) ; Act XXI of 1866 (Native Converts' Marriage Dissolution Act) ; Act III of 1872 (Civil Marriage Act). but a third person will not be bound by the decision, nor will such judgment be conclusive of marriage in proceedings between B and a third person. A decree granted by a Court under section 42 of the Specific Relief Act that the plaintiff in that suit was no longer the wife of the defendant is not a judgment passed in the exercise of matrimonial jurisdiction and is not, therefore, admissible as a judgment in rem under section 41 of the Evidence Act.

96. Judgment of a Court of matrimonial jurisdiction conclusive against strangers on questions of status but not on grounds for the dissolution of marriage, etc.-The expression "legal character" when it has reference to a judgment of a Court of matrimonial jurisdiction means the status of widowhood or wifehood. Sector 41 enacts that a final decree of a competent Court, in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character not as against any specified person but absolutely, is relevant when the existence of any such legal character is relevant, and is conclusive proof that any legal character, which it takes away from any such person, ceased at the time from which such decree declares that it had ceased or should cease. Decrees by Courts of competent jurisdiction for the absolute dissolution of marriages are no doubt binding upon third parties. If a Court of competent jurisdiction decrees a divorce or sets aside a marriage between Muhammadans or Hindus, it puts an end to the relationship of husband and wife, and is binding upon all persons that, from the date of the decree the parties cease to be husband and wife. This is not upon the principle that everyone is presumed to have had Notice of the suit, for, if they had notice, they could not intervene or interfere in the suit, but upon the principle that when a marriage is set aside by a Court of competent jurisdiction, it ceases to exist, not only so far as the parties are concerned, but as to all persons ; a valid marriage causes the relationship of husband and wife, not only as between the parties to it ; but also as respects all the world ; a valid dissolution of a marriage, whether it being the act of the husband, as in the case of repudiation by a Muhammadan, or by the act of a Court competent to dissolve it, causes that relationship to cease as regards all the world. "Matrimonial jurisdiction" of "competent Court" includes judgments and decrees passed by a civil Court in exercise of its ordinary civil jurisdiction. A Matrimonial decree passed by a competent Court is judgment in rem and has binding effect on criminal Courts. A judgment of a competent Court dissolving or annulling a marriage is conclusive proof of the fact that the relationship of husband and wife ceased from the date of the decree of dissolution, and in the case of a decree of nullity, that the marriage was null and void. The judgment is conclusive that the parties are no longer husband and wife, but it is not conclusive, nor even prima facie evidence, against strangers that the cause for which the decree was pronounced existed. For instance, if a decree between and were granted upon the ground of the adultery of B with C, it would be conclusive as to the divorce, but it would not be even prima facie evidence against C that he was guilty of adultery with unless he Ma Po Khin v. Ma Shin, 1933 R 250 ; but see Kanhya Lal v. Radha Churn, 7 W R 338 (F B).

97. Muncherji Cursetji Khambata v. Jessie Grant Khambata, 1935 B. 5, Mi Ngwe Zan v. MI 'Awe Talk, 10 I C 987, were a party to the suit. So if a marriage between Muhammadans were set aside upon the ground of consanguinity or affinity, as, for instance, in the case of a Muhammadan, that the marriage was with the sister of another wife then living the decree would be conclusive that the marriage has been set aside and that the relationship of husband and wife has ceased, if it ever existed ; but it would be no evidence as against third parties for example, in a question of inheritance, that the two ladies were sisters."

98. It needs to be mentioned that although the learned counsel cited page 572 but to be fair to them what they really meant was the Commentary under the two relevant headings at page 572 the discussion whereunder concludes at page 573).

99. The assistance rendered by the learned counsel no doubt is with full realisation of the gravity of the problem. Notwithstanding. Their valuable suggestions regarding amendment of the law for which a different exercise might be necessary by other forums, we after careful consideration of all the questions involved are of the view that even without amendment, as the law at present stands, the controversy can be resolved. This however by no means would imply that suitable amendmerit(s) would not be necessary so as to make the procedures less cumbersome and embarrassing in some situations a least for the parties concerned. On the other hand the sooner they are made, the better would it be for easy flow of justice in matrimonial cases.

100. The main amendment (other consequential amendments notwithstanding preferably, should be in the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 with reference to the possible defence of valid Nikah in the trial of the relevant offences. It can be by adding a provision after section 20, which enacts the procedural law for the trials, by reference to Cr. P. C. ; so as to provide therein, that whenever such a plea is raised the trial Judge shall proceed to decide this issue in accordance with the procedure prescribed in this behalf in the Family Courts Act with the exception of specified provisions thereof. It should be made subject to sections 105 and 106 of Evidence Act or by its direct incorporation ; so as to make it incumbent on the accused to establish the defence plea of an exception even if it forms part of the definition of the offence. A consequential amendment providing finality to the judgment on this issue would obviate fresh trial before another Family Court. It would also have salutary effect on resolution o matrimonial issues when these arise in criminal cases, because the settlement thereof would also be aided by the procedure of compromise provided in the Family Courts Act. The greatest advantage will be in the saving of time and expense, besides the avoidance of cumbersome legal involvements and embarrassm ent in multiple trials before different forums, of same issues relating to matrimonial status. As to its feasibility, on principle, there might not be any objection because, a somewhat similar provision already exists in section 14 of the Offence of Qazf (Enforcement of Hadd)

101. Ordinance No, VII of 1979.

102. The foregoing suggestion however, as indicated earlier does not imply that if that is not acceptable or practicable, the existing law does not provide a lawful way out, though of course not as efficacious as it could be through proper amendments.

103. Be that as it may the questions posed earlier can be resolved on the basis of the existing law.

104. However it is a different matter whether or not it would peccary to decide all o any one of them neatly, in this judgment, They would thus be taken one by one ; but before doing the same it is necessary to note and survey the case-law, which has already mentioned has been possible to discover, with the assistance of the Court official. The main features of the Family Courts Act which are relevant in the present context would be : One, the exclusiveness of the jurisdiction of the Family Court regarding matters enumerated in the Schedule thereto ; and two, jactitation of marriage. The cases on these two aspects can be noticed together.

105. The term `jactitation' mentioned at item No, 7 of the Schedule was added thereto by an amendment made in 1969. It came up for interpretation and consideration before superior Courts in several cases. In Mst. Amina Begum v. P Ghulam Nabi and 2 others (1), jactitation of marriage was held to mean literally "false pretence" of being married. It was further held that the suit in regard thereto could not be confined to a declaration that there was no marriage. There can be different types of suit in the field of jactitation and it would include also a suit for declaration that a person posing himself to be a spouse (husband or wife), was doing so falsely. In other words any assertion by a party regarding marriage and its denial can be brought before the Family Court through a suit for jactitation of marriage. It was also held that such suits which are based on the denial of the defendant regarding marriage are not now cognizable by a civil Court on account of section 5 of the Family Courts Act. Similarly in Tajoo v. Mst. Sattaran (2), it was observed that a suit for declaration that the defendant is not the husband or wife cf the plaintiff but the defendant alleges so is a suit for jactitation of marriage and was entertainable in a Family Court. In Mst.

106. Zohran Bibi v. Manzoor A'hmad and 2 others (3), it was held that the Family Courts Act laid stress on expeditious settlement in disposal of matrimonial disputes. Regarding jactitation of marriage it was observed that in a suit where it was asserted that the defendant (plaintiff's wife) had been divorced through an effective Talaq and that she could no more claim to be married to the plaintiff in an existing wedlock, was a suit for jactitation of marriage and was exclusively triable by a Family Court. The judgments in that case of the Civil Court and its appellate Court (on the civil side although presided over by the same person who was empowered to act as Family Court but) without the consciousness of the law contained in the Family Courts Act, were set aside as without jurisdiction. In Mst. Sakina and 2 others v. Nasir Ali (4), a somewhat contrary view was expressed namely that although a suit for jactitation of marriage could be filed in a Family Court and it could grant a declaration whether matrimonial relationship existed between contestants but when the parties other than husband and wife raise such a claim, the suit will have to be filed before a civil Court under section 54 of the Specific Relief Act ; mainly because, the prohibitory decree would be claimed under the said law and that the Family Court was not competent to grant the same. In that case in a, suit before a civil_ Court the persons who were alleging themselves spouses inter se and also others who supported them were jointly sued for a relief in the nature of jactitation of marriage. The civil Court held that it was not competent and that it fell within the jurisdiction of the Family Court. The first appellate Court upheld the decision and the High Court notwithstanding the expression of the aforenoted opinion upheld the decision of the two lower Courts. It was not clarified as to whether two different forums would be able to decide the same subject-matter involving {{FOOTNOTE}}

(1) PLD 1974 Lab. 78 (2) PLD 1974 Lab. 105

(3) p L D 1975 1.41). 318 (4) 13 L P 1970 Quctt {{FOOTNOTE}} same issues although the main defendant would be the same. A more clear enunciation of law in this behalf can be found in Nazar Qasim v. Mst. Shaista Par veen (1). A suit for jactitation of marriage was held to imply the object to perpetually silence a false allegation or claim of marriage. In this case in a suit for jactitation of marriage consequential relief was sought for the cancellation of a Nikahnama as forged one. It was held that it did not change the character of the suit which remained as for jactitation of marriage and its trial by a civil Court was barred. Reliance in this case was placed on Mst. Fahmida Bibi v. Mukhtar Ahmad and another (2) wherein it was held that it is a well-settled law that though a Court may not have jurisdiction to entertain a suit in respect of certain matter yet it is competent for the Court to entertain a plea based on that, in defence when the determination of that question is necessary for the decision of the suit itself which is within its exclusive jurisdiction. Accordingly a Family Court could not refuse the decision on similar questions if raised before it by any party. Thus an issue regarding jactitation of marriage, could be competently raised before the Family Court even by a defendant, when it is not the subject-matter of the suit filed by the plaintiff. It is in this wide context that in the case of Manzoor Ahmed v. Muhammad Nawaz Siddiqui and .5 others (3), Karam Elahee Chauhan, J. As he then was, observed and held that the existence of a wedlock at the time of suit is not necessary for claiming the dower because an ex-wife who is divorced having contracted a second marriage and children-from that wedlock, cannot be estopped fort aiming her dower money from her ex- husband if she files a suit before Judge Family Court. In that respect she cannot be told that "since your wedlock with the ex-husband at the time of the suit is no longer subsisting, therefore, your claim has ceased to be a dower-claim and cannot be gone into by Judge, Family Court". The nature of the claim is one thing but the time at which it is being claimed is another thing. Since the nature of the claim both in the case of an ex-wife or heirs of an ex-wife is essentially the recovery of "dower" that remains so always and the mere fact that it is being claimed by the heirs of the deceased wife does not detract anything from its real character. The various items of the Schedule referred to the true nature of the subject-matter of a suit and not the persons who may file or institute it.

107. From these weighty observations it can safely be concluded that .a suit, regardless of its timings can be filed by a person other than the spouses involved in the jactitation of marriage. And so can a suit be filed by the spouses, against third party, with a view to prevent them from denying their marriage.

108. In a similar case Abdur Rashid and another v. Mst. Shaheen Bibi and 2 others (4), while declaring that section 5 read with the Schedule of the Family Courts Act confers an exclusive jurisdiction on the Family Court to decide questions relating to dower ; it was held that Court or its appellate forum would be competent to determine all questions relating thereto . Whether the property involved was movable or immovable. Thus in this case questions relating to property as also the Nikah and Kabeen-nama were considered as falling within the jurisdiction of the Family Court directly or in any case as questions ancillary to the subject-matter which fall in its jurisdiction. In Sabiha Bibi v. Hussan Din (5), it was held that notwithstanding {{FOOTNOTE}}

(1) 1979 CLC 462 (2) PLD 1972 Lah. 694

(3) PLD 1975 Lab. 739 (4) PLD 1980 Pesh. 37

(5) PLD 1978 Lah. 701 {{FOOTNOTE}} the provisions contained in section 7 of the Family Laws Ordinance regarding some matrimonial questions falling within the ambit of the local council, the jurisdiction of the Family Court under section 5 of the Family Courts Act to entertain the suit for dissolution, could not be held to have been ousted by the said provision. And the Family Courts Ordinance would continue to have operation where the parties do not want the decision through the intervention of the Family Court.

109. Nevertheless it was held that Family-Court does have exclusive jurisdiction in so far as questions mentioned in the Schedule are, concerned.

110. In Najma Sadeque Rasool v. Munir Hamid Rasul and another (1), it was ruled that the provisions of section 491, Cr. P. C. For obtaining custody of a child were not attracted when according to section 5 of the', West Pakistan Family Courts Act, 1964 the question of custody of children fell exclusively within the jurisdiction of a Family Court. Reliance in this case was placed on Adnan Afzal v. Captain Sher Afzal (2).

111. In another case regarding exclusiveness of the jurisdiction of Family Court Ghulam Sabi; v.

112. Chairman, Union, Committee and others (3), it was held that the Chairman of a Union Committee had no jurisdiction to deal with an application of a divorced wife regarding dower and that the question fell within the exclusive jurisdiction of the Family Court. It was held by.One of us (Shafiur Rahman, J. As he then was) in Khan Asadullah Khan and others v. Sheikh Islamud Din (4), that matters specified in the Schedule to the Family Courts Act fell within the exclusive jurisdiction of the Family Court by virtue of section 5 of the Act and that the right to sue in that behalf would not be extinguished by the death of the person concerned and that it survives in such a manner so as to entitle the heirs to continue the proceedings. It may be observed that in such a situation third parties would be arrayed in litigation before the Family Court in matters which are exclusively within its jurisdiction. There are several cases under section 488 of Criminal Procedure Code in all of which the question arose whether section 5 of the Family Courts Act would effect the jurisdiction under section 488 of the Cr. P. C. They are:

(1) Syed Muhammad Kazim Hussain v. Mst, Aziz Fatima and another PLD 1971 Kar.

113. 759.

(2) Abdul Ghafoor v. Mst. Noor Begum 1972 P Cr. L J 909.

(3) Munshi v. Mst. Rashida Bibl 1972 P Cr. L J 1311.

(4) Mujtaba Hussain v. Mst. Ather Jehan and another 1972 P Cr. L J 351.

114. These cases, it can safely be presumed, could as well be decided on the basis of the rule laid down in Adnan Afzal's case which had approved the Peshawar case of Alifdin v. Shaukat All (5). The view taken in that behalf though in a different context in Muhammad Amin v. Mst. Surraya Begum and 2 others (6) would have to be read subject to what was held by the Supreme Court in the case of Adnan Afzal.

115. The ratio in the case of Manzoor Hussain v. Manzoor Hussain (7) decided by one of us (Muhammad Afzal Zullah, J. As ne then was) runs somewhat counter to what has been stated and discussed in the present {{FOOTNOTE}}

(1) 1973 P Cr. L J 98 (2) PLD 1969 SC 187

(3) PLD 1981 Lab. 232 (4) PLD 1978 Lab. 711

(5) PLD 1969 Pesh. 62 (6) PLD 1970 Lab. 475

(7) PLD 1974 Lab. 202 {{FOOTNOTE}} judgment and several other judgments regarding exclusiveness of the jurisdiction of a Family Court conferred under section 5 of the Family Courts Act. It was held therein that the question of subsistence of marriage was within the competence of the Criminal Court. That question had arisen in quashment of proceedings : whether or not relief could be sought by diverting the ordinary procedure contained in the Criminal Procedure Code. It was in that context that when a question of marriage was raised in those proceedings, it was left to be -determined by the Criminal Court in accordance with law in the ordinary proceedings under Criminal Procedure Code (and not under section 561-A, Cr. P. C.). In so far as that context is concerned, it would mean also that the ordinary Criminal Court, when dealing with the issue of marriage, might also be competent to decide in the manner that the same was to be left so as to be determined by the Family Court. In that context only the judgment might be correct. Otherwise, in the light of the discussion in this judgment, the said case cannot be held to have laid down correct law ; if a meaning is sought to be given to it with the implication of the jurisdiction .Of any other Court on matters mentioned in the Schedule to the Family Courts Act, being exclusively triable by a Family Court. And indeed it would be so because the said provision was neither noticed nor was relevant in that judgment. The case of Nazar Qasim v. Mst. Shaista Parveen (1) can also be noticed in connection with another important aspect namely the true import of section 23 of the West Pakistan Family Courts Act which lays down that a Family Court would not be able to question validity of a marriage which is registered under the provisions of the Family Laws Ordinance. It was held that this Section assumes the validity of marriage only if it satisfies certain conditions but would not prevent a party from showing either that the marriage had not taken place at all or that fraud had been committed in connection therewith or for that matter a Nikahnama was a forgery and/or that the signatures thereon were forgery. Accordingly it was found that such a marriage or otherwise invalid marriage, might not be held to be beyond challenge before a Family Court merely because it was solemnized in accordance with the provisions of the Family Laws Ordinance. Moreover, it might be added such a marriage and its registration even if purported to be under the Family Laws Ordinance, could not truly in law be treated as in accordance with the provisions thereof if the same was the result of fraud, misrepresentation, forgery and the like infirmities.

116. In Adnan Afzal's case it was ruled by this Court that "the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Looking at the provisions as a whole it is therefore clear that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right". Thus two clear indications emerge from this decision : firstly, the exclusiveness of the jurisdiction of the Family Court, in so far as all procedural matters are concerned in connection with the scheduled matters ; and, secondly that the same did not effect the substantive right of the party, which of course would continue to be governed by the substantive law governing person or the situation.

117. It is now possible to answer all the questions posed earlier with reference to the existing law. {{FOOTNOTE}}

(1) 1979 CLC 462 {{FOOTNOTE}} It is true that on account of the law laid down in some cases to be presently noted, it is not possible to assume that after the decision by a Superior Court on the same question between same parties, the Family Court would be able to set at naught that decision insofar as the practical aspect of the matter is concerned. But this situation would in view of what is to follow hereinafter, is not likely to arise. And if. It arises in a rare given case it could be resolved in accordance with the principles underlying the decision herein. The cases referred to above are :

(1) Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146.

(2) Asif Jan Siddiqi v. Government of Sind and others PLD 1983 SC 46, and

(3) Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064.

118. Together with the above answer to question No, 1 it is necessary to answer the next one regarding the effect of provisions of the Evidence Act. Section 41 with relevant part of Monir's Commentary thereon, has already been noted. It is also necessary to consider the same with sections 11, 13 and 35 of the Evidence Act with Commentary thereon by Monir at pages 143, 144, 145, 563, 564 and 588 of the same 1974 Edition of the book. A case cited at page 563-564 by the author reported as Muni v. Habib Khan (I) it is with respect pointed out, does not lay down correct law in the context of the laws for the time being in force, including the Family Courts Act, 1964. The learned author noted this case and made his own comment as follows : "M. Filed a suit against H for the following reliefs :-

(a) A declaration that her marriage with the defendant performed during her minority by her maternal aunt, had come to an end by her repudiation on attainment of puberty.

(b) A declaration That the defendant had terminated the marriage six months before the suit 'by an oral talaq ; and, in the alternative ; a decree for dissolution of marriage on the ground of cruelty.

119. During the pendency of the suit, filed a complaint under section 498/ 380, P. P. C. Against C and others. M applied under section 561-A, Criminal P. C. For stay of proceedings in the Criminal Court pending the decision of the civil suit on the ground that the question involved in the civil suit as well as in the criminal proceedings was the same, namely, whether the relationship of husband and wife subsisted between M and H. The point for decision was, whether the judgment of the Civil Court would be relevant or conclusive evidence in the criminal proceedings. Held, that the proceedings in the civil court could not have any effect upon the criminal proceedings, for so far as the decree for dissolution was concerned, it terminated marriage on the date of decree and so far as the decree as to non-existence of marriage was concerned, it was not a judgment in rem. There was therefore no ground for stay of criminal proceedings. The criminal court must determine the issue as to marriage itself. A judgment In rem is a judgment which by its own force has a direct effect upon the property of status to which it relates so as to render such property or status in the same condition as the judgment declares it to be. It is a judgment delivered in the exercise of a jurisdiction to bind the property or the status, which is the subject-matter of the proceedings itself.

120. The test of a judgment in rem is that it binds the whole world. {{FOOTNOTE}}

(1) PLD 1956 Lab. 403 {{FOOTNOTE}} Further, that matrimonial jurisdiction as that expression is used in section 41, Evidence Act is a special jurisdiction conferred by some law, as in the case of Christians, and marriages under the Special Marriage Act. The Legislature has created a special jurisdiction for materimonial causes which enables the Court to make binding pronouncement as to existence of marriage but there is no similar jurisdiction given to a Court in other cases."

121. It would be seen that even without taking note of the laws enacted subsequent to the decision of the above case of Muni, the comments of the learned author at page 573 already quoted, would dilute the effect of this decision including the observation that the judgment therein was not in rem.

122. At page 573 while relying on Subhan v. Muhammad Murad and another (1) it was. Remarked in this behalf that "Matrimonial jurisdiction of competent Court includes judgments and decrees passed by civil Court in exercise of its ordinary civil jurisdiction. A matrimonial decree passed by a competent Court is judgment in rem and has binding effect on criminal Courts." And further that.

123. "This is not upon the principle that every one is presumed to have had notice of the suit, for, if they had notice, they could not intervene or interfere in the suit, but upon the principle that when a marriage is aside by a Court of competent jurisdiction, it ceases to exist, not only so far as the parties are concerned, but as to all persons. A valid marriage causes the relationship of husband and wife, not only as between the parties to it ; but also as respects all the world. A valid dissolution of a marriage, whether it be the act of the husband, as in the case of repudiation by a Muhammadan, -or by the act of a Court competent to dissolve it, causes that relationship to cease as regards all the world." Moreover the rationale in Muni's case with reference to restricted interpretation of section 41 of the =Evidence Act vis-a-vis that in Subhan's case, though with respect not correct, is otherwise not now available because, the jurisdiction conferred on the Family Courts Act, 1964 in this behalf is undoubtedly matrimonial. Hence it would have a binding effect in so far as the legal character referred in section 41 of the Evidence Act is concerned, regarding matrimonial relationship-its affirmative and negative aspects included. The case of Muni is also no authority regarding the stay of a criminal case pending the suit in the Family Court under the Family Courts Act because of the latter judgment in Muhammad Akbar v. The State and another (2) which would be again noticed presently in connection . With the answer to another question. Before passing to the answer to the third question in the light of the foregoing answers to questions Nos, '1 and 2, it is necessary to notice few more cases on these two questions. They are :

(1) Nur Elahi v. The State and others PLD 1966 SC 708 ;

(2) Malik Din and another v. Muhammad Aslam PLD'1969 SC 136 ;

(3) The Coca-Cola Company of Canada Ltd. v.Pepsi-Cola" Company of Canada Ltd. A- I R 1942 P C 40 ; and

(4) Emperor v. Khawaja Naar Ahmad AIR 1945 P C 18.

124. A difficult question arose in the case of Nur Elahi -viz. What should be the procedure when regarding same case of murder, there are two versions before the trial Court ; one, in the police challan ; and the other, in the private complaint regarding the same occurrence. In the majority opinion the decision of the two versions on one evidence was not proper. First the complaint case and then the challan case was to be taken up-though the {{FOOTNOTE}}

(I) PLD 1963 (W. P.) J 34 (2) PLD 1968 281 {{FOOTNOTE}} influence and interaction of evidence and verdict one, it was assumed would undoubtedly be on the other. The same aspect was highlighted in the minority judgment when supporting the view on joint trial thus : "The law is that every criminal proceeding (and in fact every civil proceeding) is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should affect the decision. If the Court takes into consideration evidence recorded in another case of a finding recorded therein the judgment is vitiated. A finding recorded in a criminal case is not legal evidence in another criminal proceeding. In fact there is an express provision in the Evidence Act, that is, section 43, which debars the Court from taking it into consideration. It makes no difference that the finding is recorded by a High Court or the Supreme Court. It remains irrelevant. The Court which is to determine a matter must determine the matter itself unaffected by opinion expressed in other cases.

125. The above statement of law would not seem to be open to any objection and in fact appears to be based on good principle, yet it creates difficulties when the same incident is the subject-matter of two different criminal proceedings. The law does permit more than one criminal proceeding in respect of the same matter. There may be cross-cases where each of the two opposite-parties charges the other with the commission of offences in respect of the same incident or there may be different versions as to who committed an offence, put forward by different parties that move the Court. Cross-cases will be separate cases and the same applies to the other category. As under the law every separate proceeding is to be decided on its own record, and is not affected by the decision in another case it is obvious that there is possibility of a conflict between decisions in proceedings in respect of the same matter. But while we recognize the absolute correctness of the proposition that all proceedings must be decided on their own record we are at the same time not prepared to allow conflicting decisions with respect to the same incident or a matter. It would be absurd that in respect of the same incident different persons be convicted in different proceedings on stories inconsistent with each other. One Court may hold that 'A' had murdered 'B' while another Court may be holding that 'C' had murdered 'B' and both 'A' and 'C' may be punished for the murder of 'B' on the basis of stories that falsify each other. In civil cases we do not mind conflicting decrees being passed with respect to the same property between different parties. They are judgments in personem and no harm can result therefrom.

126. But it is different in criminal cases where persons have to be punished. It cannot be tolerated that for the same incident more than one person be convicted on mutually exclusive stories."

127. The rigour of rule of "irrelevancy" of certain judgments was further modified and its rigidity was reduced in the case of Malik Din ; wherein it was held that :- "Judgments, whether inter partes or not, are conclusive evidence for and against all persons whether parties, privies, or strangers of its own existence, date and legal effect, as distinguished from the accuracy of the decide rendered. In other words, the law attributes unerring verify to the substantive as opposed to the judicial portions of the record. But where the judgment is inter parses even zecitals in such a judgment are admissible. A previous judgment is admissible also to prove a statement or admission or an acknowledgement made by a party or the predecessor-in- interest of a party, in his pleadings in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on that occasion."

128. With respect, it is relevant in the present controversy and would be useful in solving the other questions also.

129. The decision of the Privy Council in its Judicial Committee in "The Coca-Cola Company of Canada Ltd. Case" is of some historical importance regarding the development of case-law on the subject of relevancy of previous judgments. The comment therein, about judgments being irrelevant, has to be read subject to what has been stated above and also to section 41 of Evidence Act.

130. Same would apply to the opinion of the Committee in the case of "Khawaja Nazir Ahmad".

131. It is now possible to answer questions Nos, 1 and 2, in that, if as a result of a criminal trial under the Offence of Zina Ordinance a finding of fact is recorded or affirmed by a superior Court regarding existence or non-existence of valid Nikah, then even if theoretically it might be possible for a Family Judge to set at naught the judgment of the Supreme Court under an assumption that the two forums are independent in their functions under separat laws, for all practical purposes, as observed earlier in this judgment and as discussed by this Court in the case of Abdul Majid and others v. Abdul Ghafoor Khan and others (1), and repeated in several subsequent judgments, it would not be possible for it to do so even under the Family Courts Act. However it has other mandatory functions to perform like effort at a compromise and the case might be otherwise and without a real conflict of decision emerging out of a fresh trial of the same issue and between the same parties (but under a different law). The relevant provisions of the Evidence Act as interpreted in the foregoing discussion as also in the cases of Nur Elahi and Malik Din and another, would not present any difficulty either. Thus the answer to question No, 1 is that the principle of resjudicata subject to the above observations would be attracted.

132. The second question relates to the stage and level of the relevant proceedings as different from the one assumed in the first question. Strictly speaking the judgment of the trial Judge under the criminal law will not have any determinative effect on the decision before the Family Court if it is to be on the same issue and between the same parties except to the extent it is permissible to refer to it under the law as declared by this Court in the case of Malik Din and another. However it cannot be said regarding vice versa situation and thus the judgment by the Family trial Judge would have direct effect on the outcome in the criminal trial if the question of valid Nikah, which already stands decided by the Family Court, is also involved before the criminal Court. Therefore, the decision of the Family Court in this behalf will have precedence.

133. Question No, 3 relates to the interaction of section 3 of the Offence of Zina Ordinance vis-a-vis section 5 of the Family Courts Act. After the resolution of {{FOOTNOTE}}

(1) PLD 1982 SC 146 {{FOOTNOTE}} the controversy involved in questions Nos, 1 and 2 regarding the interaction of the judgment of the two forums at the superior Court level and also at the trial Court level the importance of this question (No, 3) on practical aspects of the case is considerably reduced and it need not be answered in detail in so far as its theoretical aspects are concerned. It is however necessary to observe that when section 3 of the Ordinance provides that its provisions shall have effect notwithstanding anything contained in any other law for the time being in force, the intention underlying the same is not such so as to materially reduce the effect of the mandate in section 5 of the Family Courts Act to the effect that the Family Court shall have exclusive jurisdiction regarding the matters specified in the Schedule, which includes, amongst others the subjects of dissolution of marriage, restitution of conjugal rights and jactitation of marriage. Be that as it may even if there is some seeming conflict the same would be removed by the practical application of these laws as explained and discussed in answer to the other relevant questions posed in this judgment.

134. Question No, 4 is composite in the sense that it deals with the difficulties which a learned Judge holding a criminal trial under the Offence of Zina Ordinance, might have to face. In answer to this question it may be straightaway remain led that the defence of Nikah in a case of zina whether liable as a hand or as tazir in ordinary or zina-bil-jabr categories, is of immense importance in so far as the trial of the offence and results thereof is concerned. It however does not mean that this defence would have, in any way, less effect on other cognate offences of kidnapping, abduction and sale for prostitution of females and similar other offences. Definition of zina in section 4 itself visualizes the defence of a valid marriage. Similar is the position regarding definition of the aggravated offence of zina liable to hadd. It visulizes a defence of marriage even when the accused suspects to be married to the other person involved in the zina. The provision regarding zina-bil-jabr and other offences in the Ordinance would have to be construed accordingly in so far as this defence is concerned. Thus when a plea of defence is raised before a trial Judge (cunducting a trial under this law) regarding Nikah and it needs to be examined as a genuine plea for giving a finding of guilty or otherwise and the Court is informed as is visualized in situation No,

(I) under question No, 4 that the same issue is involved before Family Court (either between the same parties or those directly or indirectly concerned therein on account of the nature of the lis) the criminal Court would, as held in Muhammad Akbar (1), and as resolved in the case of Nur Elahi, stay the proceedings in the criminal case. The case of Nur Elahi has already been commented upon. It involved the stay of the proceedings on a challan case regarding the same occurrence between the same private parties as were involved in a complaint case which it was held would have to be tried first ; when the proceedings in the challan case would remain stayed. And the result of the complaint case would even if not theoretically, practically be reflected in what subsequently happens in the other case on the challan, submitted by the police. The case of Muhammad Akbar also highlights a similar practical controversy, regarding possibility of a conflict of decision by two forums. Though the nature of the lis in both the trials involved in the case of Nur Elahi, was of criminal nature, that in the case of Muhammad Akbar is of dual character; namely, criminal and civil, in the two trials, which were also before two different forums civil . In the discussion it was assumed, to start with, that whenever same question is being adjudicated upon between the same parties in criminal and civ1 , {{FOOTNOTE}}

(1) PLD 1968 SC 284 {{FOOTNOTE}} forums, the criminal proceedings are not normally postponed, but this assumption, as the entire discussion reveals, would ordinarily apply if the proceedings are other than bona fide and are pending or commenced in a civil forum when the same subject-matter requires determination in criminal proceedings. This finds support from the following further observations and rule laid down in that case : "But where it is clear that the criminal liability is dependent upon the result of the Civil litigation or is so intimately connected with it that there is a danger of grave injustice being done in the case if there be a conflict of decision between the Civil Court and the Criminal Court then in such event it is equally clear that the Criminal Court has not only the right to but should also stay its hands until the Civil litigation is disposed of, for, it is not desirable that when the title to the property itself is in dispute, the Criminal Courts should give a finding in respect of the same question In exercising this discretion the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceeding is not stayed."

135. In that case it was also held that "it cannot, therefore, be said that the subject-matter of dispute in the criminal decision is not dependent upon the decision in the civil litigation", and accordingly the stay of proceedings in the criminal Court by the High Court in exercise of its power under section 56I-A, Cr. P. C. Was upheld by the Supreme Court. Thus question No, 4 (1) is answered in affirmative.

136. The answer to sub-question No, 4(0 is that as and when a confident honest plea of Nikah is raised in a bona fide manner, it is the duty of the trial Court to enquire about the parties' attitude towards its adjudication by the Court of exclusive jurisdiction. If the suit is already pending, it must be taken to its logical end even if certain amendments become necessary due to the criminal involvements.

137. That being so the criminal Court would, as already held, stay the proceedings for a reasonable time and/or from time to time. This is permissible under section 344, Cr. P. C. If this can be done, it is a reasonable corrollary thereof to ask the concerned party, if the suit has not already been instituted, to institute one. And there is nothing in section 114, Evidence Act that the necessary presumption shall not be raised regarding the failure or refusal to file the suit, namely that if instituted the party concerned would have no chance of success. This will also serve as a test for the bona fides and genuineness of the plea. It needs to be observed that once the consideration of postponement of the trial becomes necessary so as to avail or seek adjudication by a Family Court it will be lawful to release the accused on bail so as to enable him to pursue the case before the other forum. But that would not mean that in exceptional proper cases with reasons to be recorded,' bail could not be refused or cancelled The discretion shall have to be exercised keeping in view the circumstances including the conduct of the parties concerned e. g. An attempt or intention to delay or' frustrate lawful proceedings. But it might be clarified that an attempt at compromise, without intentional delay, in the Family Court proceedings, will not be good ground for cancellation of bail; because that will be in pursuance of the mandate of the relevant law in that behalf.

138. The C. P. C. As such does not apply to the Family Court. It can adjudicate a matter only on entertaining a suit, therefore no reference will be permissible to be made to it. The answer to question No, 4 (iii) accordingly is in the negative. The need for an interpleader suit would not arise because the on visualised by the C. P. C. Is not of any relevance. Although a procedure suit out of C.

139. P. C. May not be unlawful but it would need the making of rules under the Family Courts Act, so as to give the assumption a concert form. Without the same the parties might be prejudiced.

140. Accordingly for the time being the answer to question No, 4 (iv) is also in the negative.

141. The District Judge and Additional District Judge who are empowered to try the relevant offences under the Offence of Zina Ordinance are also Family Courts by virtue of rule 3 of the relevant Rules amended on 19.8-1969 by Notification No, Integ. 10-31/64. The Act now extends to whole of Pakistan (see P.

0. 5 of 1975). The position, according to the answers of all the Law Secretaries of the four Provinces, to the question asked now in this behalf, is the same, till date. These Judges can therefore try the matrimonial suits also if and when a need arises, even by exercise of power to transfer the same to their respective Courts (see rule 7(3) ). In that case both the civil and criminal cases in controversies like the present one, can be heardby the same learned Judge. It will not be possible to give any general direction that in all cases this procedure shall be adopted. However unless there is some other law prohibiting it, in proper cases and particularly when the purpose is to save unnecessary expense, delay and embarrassment to the parties in pleading the defence of Nikah, such a procedure might H be adopted by a speaking order after recording reasons for the same. In some cases however the transfer of a case will not be possible when the law regarding territorial jurisdiction does not permit it. In that case an interested party can approach the concerned higher but competent forum. When both the cases are lawfully brought before the same Court then the trial of the case under Family Courts Act should be conducted in the first instance, so that the affect of the decision therein, may govern the criminal case in accordance with the foregoing discussion on the subject. It should be in so far as possible and mutatis mutandis, in accordance with the procedure laid down and observations made by this Court in the case of Nur Elahi, and of Muhammad Akbar. While the proceedings in the criminal trial would remain stayed, the suit proceeds and concludes. Thereafter due legal effect will be given to the decision. Question No, 4(v) and (vi) are answered accordingly.

142. Question No, 5 presents serious difficulty. The decisions under Family Courts Act can come under final scrutiny, subject to the appeal to this Court, before the High Court either in appeal or in writ jurisdiction but in the case under the Offence of Zina Ordinance, the appeal lies before the Federal Shariat Court. A case can arise when after the District Judge/Sessions Judge stage matter like the one under discussion is taken before both the superior Courts. In that case the proceeding in the High Court would have to be stayed till the decision by the Federal Shariat Court because under Articles 203-G and 203-GG of the Constitution, it would not L. Possible for the High Court to do anything which detracts from the true effect of these provisions. This position will prevail until the Federal Shariat Court is made the appellate forum for the Family Courts also. Thus after the decision of the Federal Shariat Court the High Court would then dispose of the matter in accordance with the law and procedure governing its jurisdiction but subject to what has been stated above. Though a possible conflict would be avoided, but if any aspect is left out as undetermined or a conflict is not removed it can be taken to the Supreme Court to which appeal lies from both these Courts, of course, in accordance with the law applicable to it. This answers question No, 5.

143. The foregoing discussion and questions Nos, 1 to 3 regarding effect of the decision of the Family Court regarding the plea of Nikah on the same plea before the criminal trial Court, would show that the view of the Federal Shariat Court in this behalf expressed in the case of Din Muhammad mentioned in Question No, 6 is, with respect, not correct. The judgment of the Family Court, in the circumstances discussed already would be binding in all relevant respects. Moreover it will not be correct to say that the statement made by a party in the case before the Family Court will j be relevant only for purpose of contradiction under section 145, Evidence Act. It will also be a piece of evidence before the criminal trial Court regarding' conduct and as to what was the plea in that Court. It was so held, as already noticed, in the case of Malik Din. On the stay of proceedings on the criminal side, pending decision by the Family Court the approach of the Federal Shariat Court was not correct. When it is known that the decision of that forum original/appeal, will have a determining effect on the outcome of the criminal trial, it would be in the interest of justice and fairness to stay the latter proceeding or the appeal therefrom. Question No, 6 is answered accordingly.

144. The last question (No, 7) regarding Qazf Ordinance of 1979 has only an indirect bearing on the other questions and answers. If before the Family Court, the parties enter into a compromise and the case is decided accordingly, the question would arise, as to what will then be the outcome in the criminal trial. The law in Qazf Ordinance requires complaint by specified person. If that person is a party to the compromise, he or she would not file the complaint, on the other hand as indicated in the case of Nur Elahi the prosecutor would also seek to withdraw the case. This failure/refusal to prosecute in the case of zina would not negate any of the provisions of the procedural law now made applicable to these trials. This, if not more, will be the effect of provisions of the Qazf Ordinance, 1979. They and the provisions of the Family Courts Act relating to compromise would react on each other, and would have indirect effect on the outcome of the criminal trial of Tazir offences involving plea of a valid Nikah. The last question No, 7 is therefore answered in the affirmative.

145. Before concluding the discussion on this part it is necessary to notice that in most of the cases the accused .Facing trial before the criminal Court would have to appear as a witness before the Family Court. In that situation it would not be possible to plead that on account of his position before Criminal Court, incriminatory questions and answers would be impermissible. Firstly, Evidence Act does not apply to the Family Court. And secondly, even according to section 132 of the Evidence Act, there will be no bar to such a procedure ; particularly when the accused can also appear as his witness in accordance with section 340 of Criminal Procedure Code. Thus there will be no illegality nor prejudice to any of the parties.

146. The conclusions reached, as result of and subject to the discussion, on the questions posed at pages 56-57 supra are : That the decision of a superior Court including the Supreme Court on the plea of Nikah 'will have effect on the same issue before a family Court; That at the trial level the' decision in this behalf of the Family Court' will have binding effect on the decision in criminal trial ; That unless there is pressing unavoidable need to proceed with the' criminal trial (as is in the present case to record essential evidence only regarding which there might be danger of it being lost) the Criminal Court should stay the proceedings and await the result of the contest on issue of Nikah before the Family Court, if the suit is already pending or is filed during the criminal trial proceedings; That otherwise too it can ask the party/person concerned to seek a decision on that issue from the Family Court and on refusal or failure in this behalf to raise the necessary presumptions; That in the last-mentioned eventuality the criminal trial would proceed with no change except firstly, as aforementioned about certain presumptions, and secondly, that the issue concerned shall be decided as nearly as possible in accordance with the spirit underlying the procedure prescribed by the Family Courts Act and the rules thereunder, in so far as they do not come in conflict with the procedure for the criminal trial-the provisions regarding compulsory two efforts at compromise would then not apply; That in case the proceedings of the criminal trial are stayed the accused might be released on bail so as to enable him them to pursue the Family Court case and refuse/cancel the same in exceptional appropriate cases ; That in case it is just and proper and the Sessions Judge or Additional Sessions Judge is empowered to try both the matters under both system of laws, the trial by the same Court would not be illegal provided the case under the Family Law is decided in the first instance ; That when any case on the criminal side has reached the appeal stage but the issue is still pending before the Family Court, the hearing of the appeal should be stayed for a reasonable time to await the decision by that forum and in case of intentional or otherwise inordinate delay, to take appropriate measures in re-consideration of any concession including bail and the stay, whether it is not being misused.

147. That when the same question is pending before the Federal Shariat former Court.

148. That in case compromise is reached between the concerned parties before (and a decree is passed accordingly, by) the Family Court which will have binding effect on the Criminal Court, the latter Court would give effect to it in the criminal trial in an appropriate manner, and lastly.

149. In addition to the foregoing, short answers to the specific questions posed in this judgment, it is necessary also to summarise in similar manner some of the conclusions reached in the earlier parts thereof. They subject to the specifics, are as follows:- That in case of kidnapping abduction and or zina liable to liable to tazir a valid marriage being a defence included in the very definition of the offence, to establish the same is an intitial burden on the accused pleading so.

150. That nevertheless where the Nikahnama, the witnesses and other relevant evidence in this behalf is withheld by the accused or is otherwise not adduced before it, the Court's duty under second part of section 540, Cr. P. C., is to summon the same in primary or secondary form ; That the action in section 540 (first part) is discretionary ; while under its second part it is obligatory if the evidence concerned is essential for just decision of the case : That the determination whether it is essential is dependent upon only its appearing to be so and satisfaction is not necessary under the second part of section 540, Cr. P. C. ; That under the last part also the discretion is to be liberally exercised, otherwise a wrong decision on this question in present type of case would be of unimaginable consequences for the persons affected directly or remotely ; That the bar against the so-called 'filling of gaps' and the question of so called 'prejudice to a party,' would not be relevant considerations if a matter otherwise falls within the scope of section 540, Cr. P. C. (second part) and this is true both for the defence and the prosecution; That it is when all possible effort is made and more direct evidence is not available, then only the other material mentioned in the definition of "proved" in section 3 of the Evidence Act, can also be made use of ; That benefit of plea of valid marriage is to be given by the Court only when it is able to give a positive finding thereon and not merely on suspicions and doubts ; That similarly the Court while acting under section 540, Cr. P. C. As also under section 165, Evidence Act, has to remain vigilant and should actively participate in the proceedings and should prevent any party taking undue advantage of the simplicity of the other or of mere technicalities and that this interpretation of these provisions is in accord with Islamic philosophy and jurisprudence; That the plea of valid marriage in order to be received in the manner indicated, must be raised at the earliest opportunity available before the Court and not as an afterthought and further that it should be genuine and bona fide so as to get justice and not for vexation, delay or for mere humiliation of a party ; That false material is often created in fake complaints, affidavits etc. In farcical proceedings so as to support doubtful pleas of consent and/or valid marriage but that should not deter the Court from discovering the truth by resort to section 540, Cr. P. C. And 165, Evidence Act and other lawful means ; That on discovery of an instance of foregoing type, in addition to the adverse effect on the plea of the party connected therewith directly or indirectly, the persons concerned therein should also be proceeded against in suitable forum ; That whenever an act is secret, or is accompanied by efforts of aforementioned type and/or a "minor" female is involved, the Court has immediately to act with vigilance and circumspection and is to ask all necessary questions in that behalf so as to prevent continued victimisation of innocent sufferors ; That it is particularly so in cases of "minor" females when the plea of valid marriage is otherwise against the provisions of the Child Marriage Restraint Act, 1929, and, in such case in addition to the correct determination of age, measures should he adopted to remove effects (invisible included) of apprehended coercion, cheating, undue influence ; That in the foregoing exercise the attaining of puberty would be relevant factor but not the deciding factor alone regarding coercion and undue influence and/or fraud ; That the accused can offer, himself to be a witness in support of his plea under section 340(2), Cr.

151. P. C. With necessary consequences accordingly; That Islamisation of this branch of criminal law has to face the adverse influences (through mass media) of other cultures. The law-makers as well as social thinkers have to provide the checks and balances. The Courts nevertheless, in appropriate cases when cruelty, undue advantage or unusual acts are not involved, may treat this circumstance also into consideration on mitigation where the sentence is not prescribeed as the fixed one or minimum one ; That institution of valid marriage being an important factor in the foregoing context, the plea in that behalf is to be viewed by the Courts with compassion but a mistaken zeal and temptation of being so-called liberal in these matters, has to be avoided if not for other reasons, at least for the sake of innocent victims of wrong appreciation of evidence and faulty conclusions (in matters of matrimony) ; That this branch of administration of justice has, on account of development of certain techniques of dubious character, become complicated and in order to avoid mistakes on account of ignorance, the guidance can be had from the decided cases in so far as the background knowledge and trends are concerned the latter inter alia are enumerated as inferences from these cases, at pages 39/40 (supra).

152. As a result of the discussion on various controversies arising in the matter, this case merits remand.

153. Therefore while setting aside both the judgments, the original as also the appellate, the case is remanded to the trial Court for fresh trial. The answer to the questions posed at pages 56/57 amongst others. Will be kept in mind during the fresh trial and while receiving evidence the provisions of sections 540, Cr. P. C. And 165, Evidence Act will be followed in their true spirit, as explained in this judgment. Cases, like the present one should not take long and should be decided as soon as possible. The delay already occasioned in this case has to be taken note of. The occurrence is of June 198l. There is danger of some evidence being lost, therefore the learned trial Judge, shall record the evidence before staying further proceedings, to await the decision of the Family Court on the issue of 'valid marriage' in accordance with the law already declared. He shall require both the parties to adduce evidence in accordance with the procedure of such trial. They would be well advised in their own interest, to adduce all essential evidence. But failing that the learned trial Judge, shall act under section 540, Cr. P. C. In regard to various questions involved in this case; and shall also while receiving evidence remain conscious and make use, of section 165, Evidence Act.