1. JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN).-These two appeals (Cr. A. No, 6 (S) of 1983 and Cr. A. No, 7(S) of 1983) through special leave of this Court are directed against two judgments of the. Federal Shariat Court dated 19-2-1983 and 23-4-1983. They arise out of the same case.
2. Therefore they are being disposed of together. The facts and circumstances giving rise to the appeals as noted in the leave granting order are that: - "On the complaint of Muhammad Ramzan, appellant in Cr. A. No, 7(S) of 1983, that his daughter Mst.
3. Zarin Khatoon, aged 16/17 years, had been abducted by Muhammad Saeed and he was committing Zina upon her, the accused persons, in this behalf, were challaned under section 10 (2) and section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance No, VII of 1979 read with section 109, P. P. C. A learned Additional Sessions Judge, however, giving them the benefit of doubt, acquitted them of the charges levelled against them vide his judgment dated 3-11-1981.
4. Muhammad Ramzan, then filed an appeal against acquittal before the Federal Shariat Court, which was dismissed by a Division Bench of the said learned Court vide its judgment dated 19.2- 1983 which is under challenge in Cr. A. No, 7(S) of 1983. It was further observed by the Federal Shariat Court that Muhammad Ramzan, as also Rab Nawaz and Khan Muhammad, who are his co- appellants in Criminal Appeal No, 6(S) of 1983, were prima facie guilty of making false statements to their knowledge and, accordingly, notices under section 476, Cr. P. C. Were issued to them to show cause as to why they should not be convicted and sentenced under section 193, P. P. C.
5. "The Federal Shariat Court, after giving Muhammad Ramzan, Rab Nawaz and Khan, Muhammad appellants an opportunity of showing cause against notices issued to them found that all three of them were aware of the position that Zarin Khatoon and Muhammad Saeed were married to each other and that they made false statements before the trial Court, in an attempt to prove serious offence against them; and that they were insisting even in these proceedings that their statements made in the trial Court were correct; therefore, a case under section 193, P. P. C. Was established against them. They were, accordingly, convicted and each of them sentenced to three years' R. I. By the judgment passed on 23-4-1983 which is the subject matter of Cr. A. No, 6 (S) of 1983."
6. These two appeals thus are directed against: firstly, the judgment dated 19-2-1983 against the acquittal of the accused in a case of zina and Muhammad Ramzan the complainant in that case is the appellant in this appeal which is No, 7(S) of 1983. The other appeal is directed against the judgment of the Federal Shariat Court dated 23-1-1983; and it is No, 6(S) of 1983, whereby the appellants therein were convicted under section 193, P. P. C.
7. Leave to appeal was granted to consider whether in the facts and circumstances of the case the approach of the Federal Shariat Court in both the cases was in accordance with the dictates of justice.
8. Criminal Appeal No 7(S) of 1983 needs to be attended in the first instance. The respondents therein were prosecuted on the basis of the following main accusation made In the statement of Muhammad Ramzan as P. W. 1 in that case:- "About 1 years ago at about morning time Mat. Hayat Khatoon accused came to the house and took away my younger daughter Mat. Zarin Khatoon to fetch water. Mat. Aslam Khatoon accused was also with her. A short while after sunrise Atta Muhammad, Khan Muhammad and Rab PWs came to me and informed me that my daughter Zarin Khatoon accused has been forcibly abducted by Muhammad Saeed. Rab Nawaz, Ghaus Muhammad and Dost Muhammad accused, from the water spring. At that time Saeed was armed with a gun while Dost Muhammad was armed with a hatchet. I alongwith others went in search of Mst. Zarin Khatoon but she was not traceable. Thereafter I went to the respectables of the village including Lambardar and Member.
9. The accused promised to return the hand of Mst. Zarin Khatoon. Thereafter I made my statement Exh. PA before the police which was read over and explained to me and in token of its correctness I thumb-marked the same.
10. Several items of evidence were led in that case including that the claim of valid marriage between Muhammad Saeed and Mst. Zarin Khatoon was based on fraud and forgery and it was pleaded from the prosecution side that false evidence of marriage was created only to escape the consequences of a very serious crime which was punishable under the Offence of Zina (Enforcement of Hudood) Ordinance No, V11 of 1979. It is not necessary to B give the details of the entire evidence because even the narration thereof might prejudice the trial of some case which might still be instituted in this unfortunate matter. It is, however, remarked that the evidence was not of such nature which could be easily brushed aside. It needed very serious consideration. Be that as it may the learned trial Judge in his judgment dated 3-11-1981 acquitted the accused on extension of benefit of doubt only. In appeal by Muhammad Ramzan the Federal Shariat Court in judgment dated 19-2-1983 upheld the judgment of the trial Court and as noted earlier while doing so issued notices for proceeding against the complainant and others for offence under section 193, P. P. C and they were ultimately convicted. Learned counsel for the appellants was unable to meet a technical objection that the appeal filed by Muhammad Ramzan against acquittal of Muhammad Saeed and others was not competent. It is admitted that the prosecution in the main case was on the basis of a challan submitted by the police, therefore, Muhammad Ramzan had no locks stand to file an appeal against acquittal. Subsection (2) of section 471 of Criminal Procedure Code does not permit an appeal by a complainant in a challan case against the acquittal of the accused. It is only in a complaint case that a complainant can file an appeal against acquittal and that also with the leave of the appellate Court. See Muhammad Riaz Ahmad v. Ajmal Hussain and others . As the appeal before Federal Shariat Court by Muhammad Ramzan against acquittal was not competent, therefore, on this ground alone his appeal No, 7 (S) of 1983 can be dismissed.
11. However as was observed in the case of Muhammad Riaz Ahmad a revision by a complainant in a challan case is possible. But no useful purpose would be served by the remand of the case to the Federal Shariat Court for hearing of the revision; because, it has already expressed its view on the merits of the case in the appeal which has held above, was not competent. Be that as it may the fact remains that if Muhammad Saeed and D Mst. Zarin Khatoon are not married and are living together they are committing offence/s which would, when established, be of continuing nature.
12. Muhammad Ramzan appellant if he still feels aggrieved can seek remedy from the Family Court by filing a suit for jactitation of marriage seeking declaration that Muhammad Saeed and Mst. Zarin Khatoon were not in fact validly' married with consequential relief; including that, false evidence was created to support the plea of valid Nikah in order to avoid conviction in a criminal case. In that very suit a consequential relief can also be sought for annulment of the Nikahnama if it is found to be a forgery. If and when such suit is filed, it will not only be permissible but also the duty of the Court hearing the matter to examine the possibility of a compromise between the parties at two different stages of the trial in accordance with the provision of the Family Courts Act, 1964. With these observations Criminal Appeal No, 7(S) of 1983 is dismissed.
13. The conviction of the three PWs of the main case, under the Ordinance No, VII of 1979 (they were subsequently convicted for making allegedly false statements) who are appellants in Criminal Appeal No, 6(S) of 1983, has been assailed by the learned counsel on the basis of technical grounds urging that the said conviction is unlawful; as also, on the ground that in so far as, the merits of the case are concerned it was not a fit case for conviction.
14. The grounds urged regarding so-called legal infirmities need not be noted because the learned counsel made only statements in that behalf and was unable to assist the Court for their detailed examination. It is not necessary therefore even to decide those points. In a proper case where enough assistance is rendered it might be possible to notice and decide the same.
15. On merits however we agree with the learned counsel that it was not a case for conviction. Some of the items of evidence led from the prosectrtion side in the original case required serious considerations. Though they were commented upon by the learned Judges of the Federal Shariat Court but an impression cannot be avoided that the acquittal by the trial Court in that case only on the extension of benefit of doubt was affirmed by the Federal Shariat Court on the same basis; namely, the benefit of doubt. That being so the jurisprudential consequence of such an acquittal, on extension of benefit of doubt, would be that there being equal possibility of the accused being guilty or not guilty, on the evidence led against them, in law and justice, they would have earned the right to be acquitted-not because of any final conclusion that the accusation was false but on account of the reason that the prosecution failed to establish the case beyond reasonable doubt.
16. This principle although applied in a different context in the case of Sher Hassan v. The State , will be applicable also in the facts and circumstances of this case. The benefit of doubt which was extended to the accused in the main case could as well be extended on the said principle in favour of the accused in the case under section 193, Cr. P. C. There is nothing in the facts of this case, on account of which the appellants in Criminal Appeal No, 6(S) of 1983, could be deprived of the application of this rule. Accordingly while extending to them also the benefit of doubt, we accept their Appeal (No, 6(S) of 1983) and acquit them. PLD 1983 SC 233 PLD 1959S C (Pak.) 4801 2 1 2