' GUL MUHAMMAD KHAN, C. J.-The appellants, who were convicted under .Section 10(2) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, by an Additional Sessions Judge, at Lahore, and sentenced to 4 years' R. I. Each, have come up in appeal before this Court.
2. The occurrence took place one month prior to, the filing of the F. I. R., on 29th April, 1982. Shaukat Ali P. W. 1 complainant stated that he left his house in the morning but found his wife missing when he returned in the evening. He was told by Malik Din and Muhammad Ashraf that Jafar, a co- accused accompanied by Akbar and Muhammad Arif, had taken away his wife Mst. Maqbool Bibi.
The complainant then approached Jafar several times for the restoration of his wife but he did not agree. According to him Jafar had further sold his wife to Ashfaq appellant who was committing Zina with her. The F. I. R. Was recorded by Muhammad Bashir, A. S. I., P. W.
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3. The prosecution produced 12 witnesses. Shaukat Ali P. W. I the complainant, supported his F. I R.
Ghulam Mustafa, P. W. 2 stated that Mst. Maqbool Bibi, his real sister, was married to Shaukat complainant about 2 years earlier, vide Nikahnama Exh. P. B. On which he had thumb-marked.
Abdur Rahim, P. W. 3, was Nikah Khawan as well as Nikah Registrar. He performed the Nikah of Mst.
Maqbool Bibi with Shaukat Ali on 3rd April, 1979, in Liaqatabad Colony, in the vicinity of M. A.
0. College, Lahore. He proved the entries in the Nikahnama as well as the thumb-impression of Maqbool Bibi. He further stated that Ghulam Mustafa, P. W. 2, was a witness to Nikah.
4. Muhammad Sharif appeared as P.. W. 4 to state that Mst. Maqbool Bibi was the daughter of his real brother. He stated that the appellant No, 2 who has posed as Khurshid Bibi is factually Maqbool Bibi and she was married to Shaukat about 2 years hack. He was a Vakil of Mst. Maqbool Bibi at the time of Nikah and had thumb-marked the Nikahnama Exh. P. B. He also proved her thumb- impression Exh. P. B.
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5. Dr. Khalid Hussain, P. W. 5, deposed that he had medically examined Ashfaq Ahmad who was potent. Muhammad Khan, Foot Constable, P. W. 6 had taken into possession the Nikahnama produced by Shaukat. Malik Din P. W. 7, testified that he had seen Maqbool Bibi going with Jafar and, Shaukat complainant was informed by him. Ghulam Hussain, P. W. 8, and Muhammad Bashir, P. W. 9 are formal witnesses with regard to the recording of the F. I. R.
6. Muhammad Dawood, P. W. 10, is the expert who compared the two thumb-impressions on Exhs. P B and P. E., to say that they were of the same person. In this respect he proved his report Exh. P. F. Kh.
Muhammad Ijaz Ghani, P. W. 11, had attested the finger impressions of Khurshid Bibi at Exh. P. E.
Ghulam Ali, S. 1., P. W. 12, had investigated the case. The learned rrial Court accepted ;he prosecution version and convicted the appellants as stated above. He, however, acquitted Jafar, accused.
7. It is contended by the learned counsel that Mst. Maqbool Bibi and Khurshid Bibi are two different persons and, therefore, the appellants had committed no offence to be punished. This contention, however, has no force. Firstly, the thumb-impressions on the two Nikahnamas have been compared by P. W. 10 and found to be of the same person. Further P. W. 1 stated that the appellant No, 2 has 3 other sisters, who are Fatima, Qayyum and Mst. Kalsoom. Only Fatima out of the others is married to Jafar Khan.
8. P. W. 2, 'Ghulam Mustafa, also stated that the appellant Khurshid Bibi is his real sister and her correct name is Maqbool Bibi. She was married to Shaukat All complainant. According to him Khurshid Bibi who was elder than Maqbool Bibi had died when she was only 6 months old. P. W. 4 is the real paternal uncle of the appellant No,
2. He also stated that the real name of the appellant No, 2 is Maqbool Bibi and she was married to complainant Shaukat P. W. 1 two years back.
9. Even D. W. 5 Mansab Ali, who is from the brotherhood of the appellant No, 2 stated that there are four sisters, namely Mst. Fatima, Mst. Khurshid, Mst. Maqbool and Mst. Qayyum. Fatima, according to him was married to Jafar while Khurshid to Ashfaq. In his cross-examination he stated that only two of the daughters were married. Similar, is the evidence of D. W. 6 Jewan. According to these two witnesses no third daughter of Muhammad Hussain was married. In the circumstances I have no doubt that the appellant No, 2 is Maqbool Bibi who had been married to Shaukat complainant.
Admittedly, she lived with appellant No, 1 as his wife. In this view of the matter the conviction of appellant No, 2 cannot be interfered with.
10. The learned counsel for appellant No, 1 submitted that as there is nothing on record to show that Ashfaq appellant knew about the previous marriage of appellant No, 2 with the complainant and in fact he was led into this marriage by deceipt, his case does not fall under section 10 read with section 4. He referred to section 4 of Ordinance VII of 1979 which states that "man and a woman are said to commit Zina if they wilfully have sexual intercourse without being validly married to each other". It is contended that as the evidence about wilful commission of sexual intercourse with appellant No, 2 is absent the conviction against him is unlawful.
11. According to Cyclopaedic Law Dictionary, 2nd Edition, 'wilfully' means in the common sense, voluntary or intentional. In criminal law the term generally means more than 'voluntary' and implies an evil mind or intent. Thus one, who acts in good faith, believing that no highway) existed at that place, is not guilty of 'wilfully' obstructing a highway.' It further gives 'wilfully' to mean intentional.
12. Manual of Law Terms and Phrases by K. J. Ayer 1964 Edition relies on a decided case to explain 'wilfully' which means that a person acts wilfully if he, knows his representation to be untrue and wants it to be acted upon as true and it is so acted upon. In the same book 'wilful' means intentional, deliberate, while the default or negligence will be ti considered as wilful when under ordinary circumstances the person making, the default or committing negligence could have refrained from making, or committing the same. Further that he knows that he is doing and intends to do what he is doing and is a free agent.
13. Halsbury's Laws of England, Fourth Edition, Vol. 11, para. 1252 p. 670 says 'wilfully' means deliberately and intentional, not accidentally or inadvertently. Frank R. Prassel in his book Criminal Law, Justice and Society, 1979 Edition, page 150 says that "Intent is probably the most common, at least for the major traditional offences, but some codes call for proof of 'wilful', 'voluntary', 'malicious', 'corrupt', or 'purposeful' conduct instead. These terms are generally accorded similar legal meanings, subject to limited variation from one jurisdiction to another.
14. According to Words and Phrases, Permanent Edn. Vol. 45, p. 275, `wilfully' means intending the result which actually comes to pass ; design ; intentional ; not incidental or involuntary. Again it says 'wilfully' is E generally used to mean with evil purpose, criminal intent or the like. In R. v. Senior (1), wilfully, was interpreted to mean deliberately and intentional, not accidentally or inadvertently.
15. According to Black's Law Dictionary, Fifth Edition, an act is done wilfully and knowingly when the actor intends to do it and knows the nature of the act. Further that an act or omission is 'wilfully' done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fall to do something the law requires to be done ; that is to say, with F bad purpose either to disobey or to disregard the law. It goes on to say that when used in criminal context it generally means an act done with a bad purpose, without justifiable excuse ; stubbornly, obstinately, perversely. The word is also employed to characterise a thing done without ground for believing it is lawful or conduct marked by a careless disregard whether or not one has the right so to act.
16. Stroud's Judicial Dictionary Vol. 4, Third Edition, says that the legal meaning of wilful is purposely without regard to bona fides or eollul sion and deliberately and intentionally but does not involve obstinacy of an obstructive kind and it means an intentional disobedience. In the Law Terms and Phrases Judicially Interpreted, by Sardar Muhammad Iqbal Khan Mokal, the term 'wilfully' amounts to nothing more than this that the person whose action is in question, knows what he is doing and if intends to do what he is doing and is a free agent. He further says that wilful means wantonly, intentional, deliberately and consciously and not accidentally or by inadvertence. Reference is made there to Madras State Waqf Board v. Tajammal Hussain (2) and Kedar Nath v. The State (3) .
17. The 94 Corpus Juris Secundum 620, states that words 'wilful' and `wilfully' are susceptible of different shades of meaning or degrees of intensity, and are used in different senses in different connections, and generally their signification will depend on the context in which they appear, the nature of the subject to which they refer, and the evident purpose of the writer. They are ordinarily employed to mean nothing more than that the person whose action or default, is in question, intends what he is doing and is a free agent that is that what has been done arises from the spontaneous action of his will. Thus the terms imply a conscious act of the mind and denotes the attitude of the mind and will, but they import something more than a mere exercise of the will and include the idea of consciousness or knowledge, that is, knowledge of all the circumstances ; and, when used in connection with an act forbidden
(1) (1899) 1 Q B 283 (2) AIR 1968 Mad. 332
(3) AIR 1965 All. 233 by law, the terms carrying the idea that, with knowledge, the will consented to, designed, and directed the act.
18, It will be seen from the above discussion that an act or omission is wilful or it is done "wilfully", if it is done knowingly, wantonly, designedly, consciously, permissively, voluntarily or deliberately as a free agent, with the specific intent to do what the law forbids or with specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law, without justifiable excuse, stubbornly, obstinately or perversely. The terms also signify an act done by design; with set purpose. These terms denote an intentional act, an act/ done intentionally or purposely, as distinguished from an accidental act, an act done by accident, or accidentally, or carelessly, thoughtlessly, heedlessly, or inadvertently, or otherwise beyond the control of the person to be charged. Thus the words 'wilful' and `wilfully' suggest knowledge that act or omission is unlawful and some power of choice, a choice of the free will either in doing or not doing the act, and distinguish an intentional act from an act which is involuntary.
19. Even this Court in Muhammad Siddique v. State (1) interpreted the word "wilfully" used in section 4 of Ordinance of 1979 to mean that there must be mens rea or guilty mind or guilty intention on the part1K of the accused, to convict him for the offence.
The Privy Council in Ardeshir Bhicaji Tamboli v. Agent G. I. P. Railway Co. Bombay (2) interpreted the term 'wilful neglect' to say that it means that the act is done deliberately and intentionally and not by accident or inadvertence, but so that the mind of the person who does the act goes with it.
The Supreme Court of Azad Jammu and Kashmir in Chief Secretary v. Muhammad Abdul Qayyum Khan (3) considered the word 'wilful' as a word of discription and held there must concur the following elements to bring the situation under it :-
(i) the doer must be a free agent ;
(ii) he must be conscious of what he is doing or not doing and the probable result which might arise from his act or omission.
20. The learned counsel for the State has not been able to refer to any piece of evidence on record to suggest that the appellant did commit the offence in the light of what has been stated above.
There is thus no evidence on record before us to hold that Ashfaq appellant knew or had the reason to believe that the appellant No, 2 was already married. In fact a fraud appears to have been played upon him inasmuch as that N even the name of the co-accused (his would-be wife) was concealed and changed from IstIdqbool Bibi to Khurshid Bibi. The appellant, therefore. Was himself a victim of a fraudulent and criminal act of others. He, therefore, did not commit the illicit intercourse with his co-accused wilfully. In the circumstances it will be a mockery of the law to convict him also.
21. For the reasons given above, the conviction of the appellant No,
1. Ashfaq Ahmad is set aside. He is on bail. His bail bond shall stand discharged. The conviction and sentence of the appellant No, 2 are
(1) PLD 1983 F SC.173 (2) AIR 1928 P C 24
(3) P 1, D 1983 SC (A & K) 95 maintained. She is present in Court. Her bail bond is cancelled and she is taken into police custody for undergoing the remaining period of sentence of imprisonment.