' MUHAMMAD SIDDIQUE, J.--This is an appeal under section 20 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (hereinafter referred to as the Ordinance) against the impugned judgment of the Additional Sessions Judge, Faisalabad dated 11-1-1984 whereby Muhammad Yaqoob and Mst. Shamim Akhtar accused were found guilty - under section 10(2) of the Ordinance and each sentenced to R.I. For 6 years plus whipping numbering 20 stripes and a fine of Rs,5,000 or in default of payment of fine further R.I. For 6 months.
2. Both the convicts have challenged their convictions and sentences through the present appeal.
3. In support of its case the prosecution produced 10 witnesses. Hafiz Taj Din (P.W.1) claims to have performed the Nikah of Muhammad Iqbal P.W. With Mst. Shamim Akhtar accused on 11-04-1980.
According to him Allah Bakhsh and Muhammad Yousaf were the Vakeels for the bridegroom Muhammad Iqbal while Bashir Ahmad and another person were the Vakeels of the bride. Ali Muhammad, an uncle of Mst. Shamim Akhtar was also present who had granted permission for the Nikah which was performed after the offer and acceptance by Muhammad Iqbal and Mst. Shamim Akhtar. The bride, the bridegroom, the witness and their Vakeels had signed the Nikahnama Exh.P.A.
Which also bore the signatures of this witness. In cross-examination it is admitted by this witness that Mst.Shamim Akhtar was not personally known to him. He denied the suggestion that he had not accompanied the witnesses when Mst. Shamim Akhtar had accepted the offer of marriage. He has also admitted that he was not maintaining any record with regard to the marriages performed by him and he did not remember all the particulars of the parties to the marriage of which Nikah was performed by him. The Nikah ceremony had taken place in the house of Sher Muhammad but he did not know if said Sher Muhammad was related to any of the parties to marriage. It is denied by him that the Nikah of Mst.Shamim Akhtar and Muhammad Iqbal was-performed by him on 27- 4-1980. It is further denied by him that on 11-4-1980, it had come to his notice that Mst. Shamim Akhtar was already married to Muhammad Yaqoob accused. He however did not know that prior to the aforementioned Nikah dated 11-4-1980, Mst. Shamim Akhtar was brought from the house of Muhammad Yaqoob accused. He had admitted that he had appeared as a witness in a suit filed by Mst.Shamim Akhtar accused against Muhammad Iqbal P.W. Disowning her marriage with him and that suit filed by Mst. Shamim accused was decreed by the Court.
4. Muhammad Siddique (P.W.2) is the Nikah Registrar of Ward No,1684, Union Committee No,9. After seeing original register in the Court he stated that Nikahnama Exh.P.A. Was in his hand. The Nikah was performed between Muhammad Iqbal P.W. And Mst. Shamim Akhtar accused by Hafiz Taj Din.
Iqbal P.W. And Mst. Shamim accused had signed the Nikahnama Exh.P.A. And the same was registered by him and the Nikahnama was signed by him. In cross-examination he admitted that Mst. Shamim Akhtar and Muhammad Iqbal were previously known to him. He has further admitted that Mst. Shamim Akhtar accused had filed a suit against Muhammad Iqbal P.W. Pertaining to the Nikahnama Exh.P.A. And he had appeared as a witness in that case. He, however, did not know that the said suit was decreed. According to him he had not stated before the Court in the said suit that neither the plaintiff of the said case nor the defendant were personally known to him. At this stage the learned counsel for the accused informed the trial Court that he was in possession of the certified copy of such a statement and that the original file might be summoned to enable the counsel to confront the witness with his previous statement. After this request of the learned defence counsel the trial Court passed the following orders:- "Order: ' I have seen the certified copy of the statement of Muhammad Siddique available to the learned counsel. Let the file of the suit for jactitation of marriage Suit No,140-S.C/1981, decided by Sh.Muhammad Yousaf, Judge Family Court, Faisalabad, on 5-12-1982, be summoned for tomorrow.
Sd/ Addl. Sessions Judge,\ Faisalabad 3-9-1983."
' Accordingly, the said file from the Judge Family Court was summoned and made available to the trial Court and this witness was confronted with that statement. It is admitted by this witness that he had stated before the civil Court that neither the plaintiff nor the defendant in the suit titled Mst.
Shamim Begum v. Muhammad lqbal were known to him personally. It is denied by him that at the time of Nikah Mst. Shamim Akhtar was not present. According to this witness the Nikah was performed in his presence and it was registered by him at the same time. Volunteered that the Nikah was filled by him and when the bride Mst. Shamim had given her consent and signed the Nikahnama he was present. Thereafter, when he registered the Nikah Mst. Shamim Akhtar was not in front of him but was present in the house. He has . Admitted that he had stated in his statement before the civil Court that at the time of registration of Nikah, Mst. Shamim Akhtar had signed the Nikahnama in his presence. He has further admitted that he had stated in his statement before civil Court that consent of the plaintiff (Mst. Shamim Akhtar) was obtained by Yousaf and Inayat. He denied the defence suggestion that in the first instance the Nikah of Muhammad Iqbal and Mst.
Shamim Akhtar was entered at page No,25 of the Register of Nikahnama. He has also denied that he had stated in his statement Exh.D.A. That the entry of Nikah at page 25 was cancelled by him. He was duly confronted with Exh.D.A. Wherein it was so recorded. He further denied that he had stated in his statement Exh.D.A. That he did not remember if the entries of page No,25 were cancelled by him. Again he was duly confronted with Exh.D.A. Wherein it was so recorded. He has denied the suggestion that the Nikah of Mst. Shamim Akhtar and Muhammad Iqbal was performed and registered on 27-4-1980 and that in order to change the date of Nikah from 27-4-1980 to 11-4-1980 page 25 of the Nikah Register was removed by him and fictitious entry was made at page 26 with regard to the Nikah between Mst. Shamim Akhtar and Muhammad lqbal. He has also denied the suggestion that the contents of Nikahnama Exh.P.A. Were forgedly prepared and that no Nikah had validly been performed between Mst. Shamim Akhtar and Muhammad lqbal.
5. Lady Dr. Mrs. Nafees Akhtar (P.W.3) on 30-4-1980 at about 6-00 p.m. Had medically examined Mst. Shamim Akhtaz accused aged 20 years and made the following observations:- "Hymen was broken with old and healed tears. No mark of injury or contusion was present on her body or private parts. She was habitual to sexual intercourse. Vagina admitted two fingers. Two vaginal swa bs were taken and sent to the chemical examiner, Lahore for determination of presence of semen."
' Dr.Muhammad Ajmal !Than (P.W.4) on 18-5-1980 medically examined Muhammad Yaqoob accused and found him fit for sexual intercourse. H.C. Javid Akhtar (P.W.5) on 3-5-1980 on the receipt of complaint Exh.P,D., recorded the formal F.I.R. Exh.PD/1 signed by him.
6. Khan Muhammad (P.W.6) is the witness of Nikah of Mst. Shamim Akhtar accused with Muhammad lqbal P.W. According to him on 11-4-1980 he was present when the Nikah of Mst.Shamim Akhtar was performed with Muhammad lqbal. The Nikah was performed with the consent of Muhammad Iqbal and Mst. Shamim and the Nikah was performed by Hafiz Taj Din (P.W.1) and the same was registered and the entries were made in the Nikahnama Exh.P.A. By Muhammad Siddiq P.W. In cross-examination this witness has stated that the Nikah was performed in the house of Sher Muhammad who is related to Mst. Shamim Akhtar accused. The wife of Sher Muhammad was the niece of the father of Mst. Shamim Akhtar. Before the Nikah with Iqbal P.W., Mst. Shamim Akhtar accused used to live in the house of her uncle All Muhammad and she had come to the house of Sher Muhammad 3/4 days before the Nikah. He denied the suggestion that before the Nikah of Mst. Shamim Akhtar accused and Muhammad Iqbal P.W., she had already gone for the house of Muhammad Yaqoob accused and that she was brought from the house of said accused at the time of Nikah Exh.P.A. This witness has admitted that Mst.Shamim accused is the daughter of his real maternal-uncle. He denied the defence suggestion that the Nikah of Mst.
Shamim Akhtar had taken place on 27-4-1980 and that he was present at the time of Nikah. He however admitted that Mst. Shamim Akhtar accused had filed a suit against Muhammad Iqbal P.W.
First he stated that he did not remember if he had appeared as a witness in that suit but again said that he had appeared as a D.W. In the said suit. It is further admitted by him that he had stated in his statement before the Court that before her marriage, the plaintiff (Mst. Shamim Akhtar) used to live in the house of her father with her step-mother volunteered that at times she used to live in the house of her father and at times in the house of her uncle Ali Muhammad. He had denied the suggestion that Mst.Shamim Akhtar accused had contracted a marriage with Muhammad Yaqoob accused and thereafter Muhammad Yousaf, Allah Bakhsh, and Inayat had brought her from the house of Muhammad Yaqoob accused forcibly and prepared a fictitious Nikahnama of Mst.
Shamim Akhtar with Muhammad Iqbal and that at that time Mst. Shamim Akhtar accused was locked in a room. Bashir Ahmad (P.W.7) has also made a similar statement as that of Khan Muhammad (P.W.6.).
7. Ali Muhammad (P:W.8) is the complainant and paternal-uncle of Mst.Shamim Akhtar being real daughter of his brother Ata Muhammad who had died before the present occurrence. The widow of said brother had also died some ten years before the present occurrence. His brother Ata Muhammad had no male issue but had only three daughters including Mst.Shamim Akhtar. After the death of their father all the three daughters of his brother used to live with this witness. He was carrying on a joint business of powerlooms with Muhammad Yaqoob accused. According to this witness on 11-4-1980 he had married Mst.Shamim Akhtar accused with Muhammad IqbalP.W. And the Nikah was performed by Hafiz Taj Din and was registered by Muhammad Siddique P.W. This witness was present at the time of Nikah and had signed the Nikahnama Exh.P.A. The Nikah was performed with her free consent. On 23-4-1980 Mst.Shamim Akhtar accused had come to his house from the house of her husband Muhammad Iqbal P.W. On the said date she had gone to the house of Muhammad Yaqoob accused because the daughter of Yaqoob accused was a fellow student of Mst. Shamim Akhtar previously. Mst. Shamim Akhtar accused failed to return to his house till night. The witness sent Ahmad Din to the house of Yaqoob accused to bring back Mst.Shamim Akhtar accused but Yaqoob accused did not allow her to return to his house. After that the witness accompanied by Allah Bakhsh, Boota, Ghulam Rasul, Ibrahim and Ahmad Din went to the house of Yaqoob accused as a Panchayat. Muhammad Yaqoob accused met them there and after a short discussion, he stated that Mst. Shamim accused was with him and that he would return her the following morning. On the following day again the witness himself, Ahmad Din and Anwar went to the house of Yaqoob accused and he allowed Mst. Shamim Akhtar accused to accompany them.
After returning to his house, he asked Mst. Shamim Akhtar as to why she had gone to the house of Yaqoob accused, Mst. Shamim accused stated that she was in love with Yaqoob accused and that she would not live in the house of her husband lqbal P.W. After that, the witness lodged the complaint Ex.P.D. With the police signed by him. It is further stated by this witness that Mst. Shamim Akhtar and Yaqoob accused were living as husband and wife. He did not know if Iqbal P.W. Had divorced Mst.Shamim Akhtar or not. In cross-examination the witness has admitted that Mst.Shamim accused filed a suit against Muhammad Iqbal and he had appeared as a witness in that case. It is further admitted by him that he had stated in his statement that the daughter of Yaqoob accused had taken the plaintiff of said case on the pretext of marriage. It is also admitted by this witness that a case was registered against Muhammad Yousaf and others on the complaint of Muhammad Yaqoob accused on 30-4-1980. He did not know if Mst. Shamim Akhtar was arrested by the police before the complaint Exh.P.D. Was lodged by him. He further did not know if Mst. Shamim was sent to Darul-Amman by the Magistrate. He denied the defence suggestion that the Nikanama of Mst. Shamim Akhtar and Muhammad Iqbal was not produced by him during the investigation of the case registered on the complaint of Yaqoob accused. He did not know if Mst. Shamim accused was arrested from the house of Muhammad Iqbal P.W. He denied the defence suggestion that on 24-4-1980 Mst. Shamim accused had informed him that she had contracted marriage with Yaqoob accused. He, however, admitted that his brother Ata Muhammad was owner of powerlooms in three Khattas and each one of his daughter received one Khatta. He denied the suggestion that the said powerlooms and Khattas were in possession of himself and Ahmad Din. Volunteered that the said powerlooms and Khattas were in possession of the step-mother of Mst. Shamim Akhtar accused. He denied the suggestion that he was in possession of the land belonging to his brother Ata Muhammad and that in order to retain his illegal possession of land left by his brother Ata Muhammad, he wanted to marry Mst. Shamim Akhtar with a person who could not claim the possession of land from him. It is also denied by this witness that on 27-4-1980 Nikahnama Exh.P.A. Was 'fictitiously prepared and that Mst. Shamim Akhtar had told him that she had contracted marriage with Muhammad Yaqoob accused. It is also denied by him that only to save the accused in the case registered on the complaint of Yaqoob accused, he had lodged a false complaint Exh.P.D. With the police. According to him Mst. Nasim Akhtar the sister of Mst. Shamim accused was married on 27-4-1980. The witness did not know if Mst. Shamim had given birth to any child as a result of sexual relation between her and Muhammad Yaqoob accused.
8. Muhammad Iqbal (P.W.9) claims to be husband of Mst.Shamim Akhtar accused. According to him his Nikah was performed with her on 11-4-1980 in the house of Sher Muhammad P.W. And the permission for Nikah was given by Ali Muhammad P.W. Who is the paternal-uncle of Mst.Shamim Akhtar accused. The parents of Mst. Shamim accused had died long ago. According to this witness he had signed the Nikahnama Exh.P.A. And it was also signed by Mst.Shamim Akhtar accused. The Nikah was performed by Hafiz Taj Din P.W. There were about 50/60 persons present at the time of Nikah. It is further stated by this Witness that after marriage Mst.Shamim accused had been performing the marital relatiobs with him till 22-4-1980. On 22nd or 23rd of April, 1980, Mst.Shamim accused had gone to the house of Ali Muhammad P.W. For a normal visit. From the house of All Muhammad Mst. Shamim Akhtar accused had gone to the house of Muhammad Yaqoob accused and failed to return. Muhammad Yaqoob accused was detaining her for the purpose of illicit relations and both the accused were committing Zina with each other. He produced the Nikahnama Exh.P.A. Before the police during the investigation of this case. In cross-examination it is admitted by this witness that Mst. Shamim Akhtar accused had filed a suit against him with regard to the Nikahnama Exh.P.A. Volunteered that it was a false suit. It is further admitted by this witness that the said suit was decreed in favour of Mst.Shamim Akhtar accused and he had not filed any appeal against said decree. It is further stated by him that he had not filed a suit for restitution of conjugal rights. His statement was recorded in the above-said suit. He has denied the defence suggestion that he himself, Yousaf, Inayat and Allah Bakhsh had forcibly brought Mst. Shamim Akhtar from the house of Muhammad Yaqoob accused in his absence. After returning from the house of Muhammad Yaqoob accused, she had lived in his house for 3/4 days. Mst. Shamim Akhtar accused was not arrested from his house. Volunteered that he had produced her at the Police Station. He has admitted that in his statement before the Civil Court, he had stated that the plaintiff i.e,Mst. Shamim Akhtar accused was arrested from his house. He has however, admitted that Mst.
Shamim Akhtar accused arrested in the case which was registered against him and others on the complaint of Muhammad Yaqoob accused. It is further admitted by him that Mst. Shamim Akhtar accused was sent to Dar-ul-Aman as ordered by the Magistrate. He denied the defence suggestion that Nikahnama E3ch.P.A. Was fictitiously prepared after 24-4-1980 after which date he had been performing illegal sexual intercourse with Mst. Shamim Akhtar accused. Volunteered that he had been performing sexual relations with her after 24-4-1980 because she was his wife. He was duly confronted with his police statement Exh. D.D. Where certain things were not mentioned which he had deposed before the trial Court. It is admitted by him that Mst. Shamim Akhtar accused had not signed the Nikahnama Exh.P.A. In his presence. He however denied the suggestion that in the first instance his Nikah with her was entered in the Register on 24-4-1980 and that the said page of the Nikah register was removed and destroyed. According to him the Nikanama Exh P.A. Was completed in his presence and Mst. Shamim Akhtar had signed earlier than he had signed the same.
9. S.I. Abdul Majid ( P.W. 10) is the Investigating Officer in this case. He had recorded the complaint Exh.P.D. Of Ali Muhammad P.W. He forwarded the said complaint to the Police Station for registration of the case. He proceeded to the place of occurrence and prepared the site plan Exh. P.F. He recorded the statements of P.Ws. He secured the Nikahnama Exh. P.A.Vide memo Exh. P.E signed by him. He also secured original register of Nikahs vide recovery memo Exh. P.G. He also secured another Nikah register Exh.P.H. He got Mst. Shamim accused medically examined at D.H.Q Hospital, Faisalabad. She was formally arrested in this case on 3-5-1980. Muhammad Yaqoob accused was arrested by him on 18-5-1980 and also got him medically examined. After the completion of the investigation, he challaned both the accused. In cross-examination this Police Officer has admitted that Muhammad Iqbal P.W. Had produced the Nikahnama Exh. P.A. On 3-5-1980. It is further admitted by him that Yaqoob accused had got a case registered with regard to the abduction of his co-accused Mst. Shamim Akhtar against Muhammad Iqbal and others. Mst. Shamim Akhtar accused was recovered during the investigation of the said case on 30-4-1980. She was produced before the Court from where she was sent to Darul Aman. This witness did not remember if Mst.
Shamim Akhtar accused was produced before the Court on 2-5-1980. According to him she remained in his custody on the night between 30-4-1980 and 1-5-1980 and was produced before the Magistrate on 1-5-1980 and the Court ordered for her production on 2-5-1980. It is admitted by him that from 30-4-1980 to 2-5-1980 Mst. Shamim Akhtar remained in his custody. According to him he had recorded the statement of Mst. Shamim Akhtar accused in the other case on 30-4- 1980. It is admitted by him that Mst. Shamim Akhtar accused had been continuously making the statement in favour of Muhammad Yaqoob accused. It is denied by him that the Court had not directed that Mst. Shamim Akhtar accused be produced on 2-5-1980. At that stage the witness stated that Muhammad Iqbal P.W. Had not produced Mst. Shamim Akhtar accused and in fact she was recovered from the Baithak of Allah Bakhsh. At the time of recovery said Allah Bakhsh was not present. He denied the defence suggestion that he had colluded with Muhammad Iqbal P.W. And others the accused named in the case registered at the instance of Muhammad Yaqoob accused and for that reason he had not arrested any one of them. It is further denied by him that with that purpose, the case registered on the statement .Of Muhammad Yaqoob accused was cancelled and Muhammad Yaqoob and Mst. Shamim accused were falsely challaned at the instance of Muhammad Iqbal P.W. And others. Volunteered that the case registered on the statement of Muhammad Yaqoob accused was found false during the investigation. He did not remember if there was any new sheet in the Nikah Register secured during the investigation. He denied the suggestion that the copy of Nikahnama Exh.P.A. Did not tally with the contents of Nikah Register. He admitted that Muhammad Boota Sub-Inspector is brother of Muhammad Yaqoob accused but denied the suggestion thal in the year 1975 he was posted in C.I.A. Sargodha under said Muhammad Boota S.I. It is further denied that the said Muhammad Boota S.I. Had reported to the higher officers against him for corruption.
10. Muhammad Yaqoob accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations. According to him Mst. Shamim Akhtar accused was never married with Muhammad Iqbal P.W. When asked why this case was made against him and why the P.Ws. Had deposed against him, he stated as under:- "I had contracted marriage with Mst. Shamim Begum, my co-accused on 20-4-1980. Thereafter myself and Mst.Shamim Begum have been performing marital relations. Since the uncle and other relatives of Mst. Shamim Begum did not agree to my marriage with her, therefore, the uncle of Mst.
Shamim Begum had lodged a false case against myself and the co-accused. The fact of matter was that on 23-4-1980 Muhammad Yousaf, Inayat, Allah Bakhsh and Muhammad Iqbal had abducted my wife Mst. Shamim Begum from my house in my absence. On 30-4-1980, a case was registered against the above-said persons at my instance at P.S. Gulberg, Faisalabad. However, the police had cancelled the said case in collusion with the said accused. The present case was registered only to create a defence for the accused of said case. After the cancellation of case, I had lodged a complaint against the said acccused who are being tried in this Court and the case is fixed for today."
11. Mst. Shamim Akhtar accused in her statement recorded under section 342, Cr.P.C. Also denied the prosecution allegations. According to her she had never contracted marriage at any time with Muhammad Iqbal P.W. And Nikahnama, dated 11-4-1980 Exh.P.A. Was a forged document.
According to her she had filed a suit for jactitation of marriage against Muhammad Iqbal P.W.
Which was decreed in her favour. She denied the prosecution allegations that from 11-4-1980 to 22- 4-1980 she had been performing marital relations with Muhammad Iqbal P.W. She stated that from 23-4-1980 to 30-4-1980 she was kept in illegal detention by Muhammad Iqbal P.W. And he had been committing Zinabil-jabr with her throughout this period. On 30-4-1980 she was recovered by the police during the investigation of the case registered at the instance of Muhammad Yaqoob accused. According to her she remained in the custody of police since 30-4-1980 and was formally arrested on 3-5-1980. When asked why this case was made against her and why the P.Ws. Had deposed against her, she stated that her co-accused Muhammad Yaqoob had made a detailed statement in this behalf and she owned the same.
12. The accused persons produced 3 witnesses in defence. Allah Bakhsh (D.W.1) is Imam of the Mosque in Ghulam Muhammad Abad and he had performed the Nikah of Muhammad Yaqoob and Mst. Shamim Begum accused in the house of Muhammad Yaqoob accused. He is a Nikah Khawan also. The register of Nikah was brought by Sher Muhammad. He stated that the original Nikahnama was Exh.P.B. In the cross-case Exh.P.E. Was the photostat copy of said Nikahnama. The original bore his signatures correctly. He has deposed that he himself and Abdul Aziz had obtained the consent of Mst. Shamim Begum accused and two Perts of Nikah were duly filled by Sher Muhammad and two Perts blank of signatures of both the accused were present on blank Perts of Nikahnama. He had also signed the two blank Perts of Nikahnama. In cross-examination the witness stated that he had asked Mst. Shamim Begum if she was previously married with any other person to which she replied in negative. However, prior to that, he did not know if Mst. Shamim was married with Muhammad Iqbal P.W.
13. Sher Muhammad (D.W. 2) is the Nikah Registrar. He has deposed that on 20-4-1980 he had registered the Nikahnama of Muhammad Yaqoob and Mst. Shamim Begum accused. He has seen the original Nikahnama on the file of cross-case, photostat copy was Exh.D.B. The original Nikahnama was signed by him and he was present at the time of Nikah also. In moss-examination it is stated by this witness that four Perts of Nikah are to be prepared but he had not signed all the Perts and had signed only one Pert of Nikah. He, however, admitted that two Perts of Nikah were filled and the other two were signed by the parties and the Nikah Khawn. It is further admitted by him that Mst. Shamim Begum accused had signed the Nikahnama as Mst. Shamim Akhtar and then she signed the Nikahnama as Mst. Shamim Begum because her name was entered as Mst Shamim Begum in column No, .4 of the Nikahnama. He denied the prosecution allegation that 20- 4-1980 was fictitiously entered as the date of registration on the Pert Nikah. He, however, has admitted that the date of registration does not exist on the other three Perts of Nikah register. He also denied the suggestion that the Nikahnama was fictitiously prepared on the night between 23rd/24th April, 1980 and incorrect date of 20-4-1980 was recorded.
14. Abdul Aziz (D.W.3) claims to be present at the time of Nikah of Muhammad Yaqoob and Mst.
Shamim Begum accused. The Nikah was performed on 20-4-1980 by Allah Bakhsh D.W. Mst.
Shamim was k lown to him and he alongwith Ilam Din and Allah Bakhsh D.W. Had obtained the consent and signatures of Mst. Shamim Begum accused on the Nikahnama. He stated that Ilam Din was his real brother. In cross-examination by the State counsel he has stated that he had thumb marked the Nikahnama. He had thumb marked two Perts of Nikah which were duly filled.
According to him he had not put his thumb impression on any blank forms. According to him Mst.
Shamim Begum was brought to the house of Muhammad Yaqoob accused by Sultan before the Nikah. In his presence. Prior to her Nikah Mst. Shamim had never visited the house of Muhammad Yaqoob accused. Similarly, Muhammad Yaqoob accused had also never visited the house of Mst.
Shamim Begum before the Nikah. The date for Nikah wal fixed some three or four days before the Nikahr and it was fixed by Ch. Sultan. He denied the suggestion that Ch. Sultan was neither to uncle nor otherwise related to Mst. Shamim Begum and that the Nikahnama was fictitiously prepared on the night between 23rd/24th April, 1980 and the date was incorrectly put as 20-4-1980. He further denied the suggestion that he had made a false statement at the instance of Muhammad Yaqoob accused.
15. The trial Court vide impugned judgment convicted and sentenced Muhammad Yaqoob and Mst. Shamim Begum accused as mentioned above.
16. We have heard at length the counsel for the parties who have also taken us through the entire material available on the record.
17. Certain dates are rather' significant in this case. According to the complainant the Nikah of Muhammad Iqbal P.W with Mst. Shamim accused was preformed on 11-4-1980. According to the accused persons the Nikah of Mst. Shamim accused with Muhammad Yaqoob accused was performed on 20-4-1980. It was; on 23-4-1980 when first she went to see her uncle Ali Muhammad and thereafter went to see Muhammad Yaqoob accused. On 24-4-1980, the complainant party brought her back from the accused party. On 26-4-1980 an application under section 100, Cr.P.C.
For the recovery of Mst. Shamim accused was submitted by the accused party but no action was taken. It was on 30-4-1980 that Muhammad Yaqoob accused lodged the report with the police against Muhammad Iqbal P.W. And others. According to the version of the accused it was under these proceedings, that on the same date, i.e, 30-4-1980 Mst. Shamim was recovered by .He police.
According to the investigating officer she was recovered from the Baithak of Allah Bakhsh. On the other hand Muhammad Iqbal PA. Says that he produced her before the police on 30-4-1980. On 2- 1-1980 she was s It to Darul Aman. All Muhammad filed a complaint against the accused on 3-5- 1980. Thus at the relevant time there were two complaints in the field--one filed by Ali Muhammad P.W. And the, other by Muhammad Yaqoob accused. The police cancelled the complaint of Muhammad Yaqoob accused on 15-5-1980. After the cancellation of this complaint, Muhammad Yaqoob accused on 26-1-1981 filed a private complaint before the trial Court which proceeded alongwith the challan case the trial Court summoned four accused persons in that private complaint on 18-2-1981. Mst. Shamim Akhtar on 25-1-1981 filed a suit for jactitation before the Judge Family Court Faisalabad against Muhammad Iqbal P.W This suit was hotly contested by the parties and ultimately on 5-1 -1982 the suit was decreed in favour of Mst. Shamim accused. It was long after this that on 22-1-1984 the trial Court convicted and sentenced the accused in the police challan case but dismissed the private complaint of Muhammad Yaqoob accused. Both the convicts Muhammad Yaqoob and Mst. Shamim have challenged their convictions and sentences through Cr. A . No,15/L of 1984 while Muhammad Yaqoob accused has filed Cr.P.S.L.A. No,1 /L of 1984 for special leave to appeal against Muhammad Yousaf and others. Since the criminal appeal as well as the criminal petition for special leave to appeal arise out of the same set of facts and circumstances they shall be disposed of together by this judgment.
18. It is vehemently contended by Mr. Aftab Farrukh the learned counsel for the convicts that under section 5 of the Family Courts Act, 1964, in matrimonial matters including jactitation, Family Court has exclusive jurisdiction and final adjudication in that jurisdiction is a judgment in rem under section 41 of the Evidence Act, and, consequently, a conclusive proof of the matter in question or fact decided. It is further argued by him that when a matter decided is conclusive proof as defined under section 4 of the,/ Evidence Act, it means that no evidence will be permitted to be led for disproving or challenging the fact so found. It is also stated at the bar by the learned defence counsel that the trial Court itself half summoned the original file from the Judge Family Court regarding the jactitation suit filed by Mst. Shamim accused against Muhammad Iqbal P.W and the said file contained the original judgment and decree of that Court and, therefore, it was obligatory on the part of the learned 'Additional Sessions Judge to take notice of the said judgment and decree of the Judge Family Court and to give effect to the same in accordance with law. Iii other words, the trial Judge could not ignore or wash of the effect of the judgment and decree of the Judge Family Court on technical ground that a 'certified copy of the same was not placed on the record. The interim order of the trial Court, dated 3-9-1983 summoning the file of the suit for jactitation of marriage decided by the Judge Family Court has already been reproduced above. It is an admitted fact that the judgment and decree of that Court, dated 5-12-1982 had attained finality as the same were not challenged before any competent Court or forum by the aggrieved party. The result is that the said judgment and decree still hold the field and have attained finality.
It is in this factual background that we have to see whether the ,effect of the said judgment and decree can be washed off indirectly in technical ground that certified copies were not placed on the record although the original file containing the required judgment and decree was available to the trial Court. The learned defence counsel has placed reliance on certain portions of the judgment of the Shariat Appellate Bench of the Supreme Court in Muhammad Azam's case PLD 1984 SC 95. Factually, the position boils down to this that both Muhammad Iqbal P.W. And Muhammad Yaqoob accused claim their respective marriages 'with Mst. Shamim accused. As regards the position of Mst. Shamim accused, she has admitted her marriage with Muhammad Yaqoob accused land has denied her marriage with Muhammad Iqbal P.W. In addition to the stand taken up by Mst. Shamim Akhtar before the trial Court, th4re is another very important circumstance which is decisive regarding this particular issue. As mentioned earlier, she on 25-1- 1981 filed a suit for jactitation before the Judge Family Court, Faisalabad against Muhammad Iqbal P.W who contested the suit. The Judge Family Court framed the following issues in that suit:- "(1) Whether plaintiff is legal-wedded wife of Muhammad Yaqoob and has no relation with the defendant O.P.P.
(2) Whether plaintiff has no cause of action to file this suit? O.P.D.
(3) Whether plaintiff has no locus standi to file this suit? Q.P.D.
(4) Whether suit is not maintainable in its present form? O.P.D."
' Issues Nos. 1, 2, 3 and 4 were decided against the defendant Muhammad Iqbal P.W. And consequently the suit of Mst. Shamim accused plaintiff was decreed in her favour against the defendant Muhammad Iqbal P.W. It is an admitted fact that the judgment and decree of the Judge Family Court, Faisalabad were not challenged before any appropriate Court or forum and, therefore, that judgment and decree have attained finality and still hold the field. Now we have to see the effect of that judgment and decree on the present criminal case. In other words the question is whether the judgment and decree of the Judge Family Court are binding upon the criminal Courts including the Federal Shariat Court regarding the marriage of Mst. Shamim accused with Muhammad Iqbal P.W. The learned defence counsel, as mentioned above has relied upon the decision of the Shariat Appellate Bench of the Supreme Court in Muhammad Azam's case referred to above. The Shariat Appellate Bench in that case formulated various questions. Question No,1 at this stage is relevant and is reproduced below:- "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."
' This question has been answered that the principle of res judicata, subject to certain observations would be attracted.
19. Question No, 2 formulated by the Shariat Appellate Bench reads as under:- "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."
' While dealing with this question, their Lordships were pleased to observe as under:- "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, with 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."
20. It is not disputed that the principle enunciated by the Shariat Appellate Bench of the Supreme Court is constitionally binding upon this Court. In the circumstances of the case, no exception at this stage in the present criminal proceedings, can be taken against the judgment and decree of Judge Family Court which have attained finality and still hold the field and, therefore, principle of res judicata would be attracted. The trial Court was not legally competent to nullify the effect of judgment and decree of the Judge Family Court. It may be observed that under section 5 of the West Pakistan Family Courts Act, 1964, Judge Family Court had exclusive jurisdiction to adjudicate upon all matters specified in the schedule. The schedule clearly includes jactitation of marriage also. The said section 5 and the schedule are reproduced below:- "Section 5 Jurisdiction.-- Subject to provision 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."
"SCHEDULE (See section 5 at page supra)
1. Dissolution of marriage.
2. Dower.
3. Maintenance.
4. Restitution of Conjugal rights.
5. Custody of children.
6. Guardianship.
7. Jactitation of marriage.
' Further, we find that section 41 of he Evidence Act will also be attracted in this behalf and the Judgment and decree of the Judge Family Court regarding jactitation of marriage of Mst. Shamim accused will be a judgment in rem as and conclusive proof of the matter in question as defined in section 4 of the Evidence Act. Section 41 of the Evidence Act reads as under:- "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 legal character, or which declares any person 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 things, is relevant.
' 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 that person at the time when such judgment 17 (order or decree) declares it to have accrued that person; ' that any legal character which it takes away from any such person ceased at the time from which such judgment, 17 (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, 17 (order or decree) declares that it had been or should be his property."
' The expression" conclusive proof" has been defined under section 4 of the Evidence Act in the following words:- "4. Conclusive proof. When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it."
It is not disputed that suit for jactitation is a matrimonial there to included under said section 41 of the Evidence Act. As mentioned above, 'Judge Family Court had exclusive jurisdiction to adjudicate upon the suit for jactitation under section 5 of the Family Courts Act, 1964 arid, therefore, the judgment of the Judge Family Court would be a judgment in rem and would have binding effect upon the criminal Courts. The obvious result of judgment and decree of the A Judge Family Court, dated 5-12-1982 is that Muhammad lqbal P.W cannot claim Mst. Shamim accused as his wife and his claim regarding his marriage with her on 11-4-1980 cannot be even entertained. The Shariat Appellate Bench of the Supreme Court in the above-mentioned case while dealing with the judgment of the Judge Family Court observed as under:- "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."
In accordance with the principle laid down by the Shariat Appellate Bench of the Supreme Court, it can safely be held that in the instant case the judgment and decree of the Judge Family Court, dated 5-12-1982 in jactitation suit filed by Mst. Shamim accused against Muhammad Iqbal P.W.
Having attained finality, will have precedent and conclusive proof so far the question of her marriage with lqbal P.W. Is concerned. The result is that Iqbal P.W. Can neither claim Mst. Shamim as his wife nor his marriage with her on 11-4-1980. It is not denied even by the learned State counsel and the counsel for the complainant that if the alleged Nikah of lqbal with Mst. Shamim accused, dated 11-4-1980 is disbelieved or becomes non-existent, then the present convicts have committed no offence in marrying each other on 20-4-1980 and committing sexual intercourse as husband and wife, as both are major and have admitted that status even before the trial Court in their statements under section 342, Cr.P.C. Mst. Shamim Akhtar accused may have contracted her Nikah with male co-accused against the wishes of her C relations but in the eye of law she was fully competent to enter into said Nikah with Yaqoob accused as she was major.
21. Following the principle enunciated by the Shariat Appellate Bench of the Supreme Court in Muhammad Azam's case referred to above, we accept this appeal set aside the convictions and sentences of Muhammad Yaqoob and Mst. Shamim Akhtar appellants and acquit them of the charge. They are already on bail. Their bail bonds stand discharged.
22. As regards criminal petition for special leave to Appeal No, 1/L of 1984, it is still at the preliminary stage and has not been yet admitted for regular hearing and no notice has been issued to the respondents. The learned counsel for Muhammad Yaqoob petitioner has not advanced any arguments whether to justify grant of leave to appeal as he has felt satisfied with the success in the main appeal. Accordingly this petition for special leave to appeal fails and the same is hereby dismissed in limine.