' This is an appeal under section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the Ordinance), against the judgment of the Additional Sessions Judge, Khushab, dated 26th May, 1983 whereby Muhammad Mumtaz appellant was found guilty under section 11 of the Ordinance and sentenced him to undergo R. I. For one year plus whipping numbering 20. Stripes.
2. The brief facts of the case are that Mst. Bakhtan P. W. Is the real sister of Mumtaz, appellant. She was married to one Ghulam Haider about 12/14 years prior to the present occurrence. Out of this wedlock two daughters Mst. Saida and Mst. Zubaidan were born. Said Ghulam Haider died in about 1972. His widow Mst. Bakhtan and his two minor daughters inherited his agricultural land. The widow alongwith her minor daughters remained in her husband's house for several years without remarrying anyone. It seems that after the death of Ghulam Haider there arose some dispute about his agricultural land, among his relatives. According to the version of the complainant Mumtaz appellant being the real brother of Mst. Bakhtan P. W. And maternalpuncle of her minor daughters wanted to deprive them of their landed property which they had inherited from Ghulam Haider. On other hand the allegation of the opposite party is that Muhammad Sharif complainant in order to grab the said property performed nikah with Mst. Bakhtan P. W. It is not necessary to express any opinion about the said property dispute as the issue involved in the present case is purely criminal. According to the complainant Muhammad Sharif, his nikah with Mst. Bakhtan was performed on 13th March, 1979 (Exh. P. B.) and the same was registered with the Registrar on 18th August, 1980 (Exh. D. H.). On I 1 th November, 1980 Mumtaz accused lodged the report F.
1. R. No, 85/80 (Exh. P. A.) with Police Station Noorpur Thal, District Sargodha under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against Muhammad Sharif and Mst.
Bakhtan P. Ws. During the investigation of this report the police found that the allegation of zina made against Muhammad Sharif and Mst. Bakhtan was incorrect because the S. H.
0. Was given a nikahnaina showing the marriage between Muhammad Sharif and Mst. Bakhtan performed on 13th March, 1979 (Exh. P. B.). Consequently, the police cancelled the case against said Sharif and Bakhtan and initiated proceedings under section 182 of the Penal Code against Mumtaz.
According to the counsel for the appellant, these proceedings are still pending.
3. Another report F. I. R. 193/80 was lodged with the Police Station Qadirpur, District Jhang on 28th December, 1980 by Mumtaz against several persons including said Muhammad Sharif and Mst.
Bakhtan. This report was under several sections of the Penal Code in addition to secption 10 of the Offence of Zina Ordinance. Abdul Wahid and others who were accused in this F. I. R. No, 193/80 challenged this complaint in the Court of Mr. Ameer Ali, Magistrate 1st Class, Jhang who, vide order dated 11th April, 1982 (Exh. D. C.) came to the conclusion that a case was made out against Muhammad Sharif and Abdul Wahid under section 468, P. P. C. But other accused persons were not concerned with that case. Accordingly he cancelled that case against all other accused persons but proceeded against Muhammad Sharif and Abdul Wahid. He kept this file with himself and directed to issue summons against said Muhammad Sharif and Abdul Wahid under section 468, P.
P. C. This order of the Magistrate was challenged in revision before the Additional Sessions Judge, Jhang who, vide an order dated 25th May, 1982 (Exh. D. E.) dismissed the same. It is stated at the bar by Mr. Ghulam Ali Mubashar, -the learned counsel for the appellant that the said order of the Additional Sessions Judge, dated 25th May, 1982 has been challenged before the Lahore High Court for quashment of the proceedings against Muhammad Sharif, etc. (Criminal Miscellaneous No, 165/0/1982. This quashment petition is still pending according to the learned defence counsel. The State counsel is not in a position to deny this factual aspect of the case.
4. The present proceeding commenced when. Muhammad Sharif complainant on 2nd January, 1982 filed a petition under section 7 of the Ordinance against Muhammad Mumtaz and 3 others before the Court of District and Sessions Judge, Sargodha who returned the same for presenting it before the Elaqa Magistrate in accordance with law. Accordingly, the petition was presented before the Elaqa Magistrate on 5th January, 1982 who forwarded the same to the District and Sessions Judge, Sargodha. This was then entrusted to the Additional Sessions Judge, Khushab for disposal.
5. In support of its case the prosecution produced 5 witnesses. It is not necessary to discuss in detail the evidence produced by the prosecution. Certain facts are not in dispute in this case. The parties are closely related inter se. The main bone of contention between the parties, as observed above seems their interest in the landed property left by Ghulam Haider deceased which was earlier inherited by his widow Mst. *"Bakhtan and his minor daughters Mst. Saidan and Zubaidan.
Muhammad Sharif complainant had performed nikah with Mst. Bakhtan, P. W. But the dispute is about the date of said nikah. According to the defence the nikah was actually performed on 18th August, 1980 while according to the complainant it was read on 13th March, 1979 but was registered with the nikah Registrar on 18th August, 1980. The correctness and genuineness of nikahnama dated 13th March, 1979 (Exh. P. B.) has been examined by two Courts namely. The Magistrate and the. Additional Sessions Judge and at present the matter is said to be sub judice before the Lahore High Court. The learned defence counsel has taken me through different documents placed on the record to show that in fact nikah between the complainant and Mst. Bakhtan was performed on 18th August, 1980 and not on 13th March, 1979. Again it is not necessary to express any positive opinion about the exact date of the nikah of the complainant or the genuineness of Exhs. P. B. And D. H. Because this issue is already sub judice before the High Court and may arise before the trial Court if occasion arises. For the purpose of the present case it is not necessary to go into such minute details of that issue. The main contention raised on behalf of the appellant is whether in the circumstances of the case an element of doubt exists on the record regarding the exact date of marriage of Muhammad Sharif, complainant with Mst. Bakhtan-whether on 13th March, 1979 or 18th August, 1980. If such an element of doubt exists then it is not disputed by the learned State counsel that the benefit must go to the accused. Further it is not denied that the Qazf Ordinance being a Penal statute, has to be construed strictly like any other criminal statute. After going through the relevant material available on the record I find that there exists some element of doubt regarding the genuineness/correctness of nikahnama (Exh. P. B.) dated 13th March, 1979. It is well-settled principle of Islamic Jurisprudence that benefit of doubt should go to the accused. I find that in the instant case the appellant can legitimately claim the benefit of that doubt. Accordingly giving benefit of doubt to Muhammad Mumtaz, appellant, I accept this appeal, set aside the conviction and sentences awarded to him, and acquit him of the charge. He is already on bail and his bail bond shall stand discharged.