1. JUSTICE NASIM HASAN SHAH, MEMBER.--This is a petition directed against the order of acquittal of Zafar Sultan and Mst. Ghulam Ayesha, respondents Nos.2 and 3 herein, passed by the Federal Shariat Court on 14-1-1985 in Criminal Appeal No.127/L of 1984.
2. According to Noor Hassan (petitioner herein) Mst. Ghulam Ayesha (respondent No. 3 herein) is his legally-wedded wife, their Nikah having been performed on 18-8-1971. Out of the said wedlock a child named Muhammad Qazzafi was born in 1974, who is now aged 10/11 years. His case is that Zafar Sultan (respondent No. 2 herein), who was their neighbor, after developing illicit relations with his wife in the year 1978 abducted her. In connection with the said abduction a case under section 498, P.P.C. Was got registered against him. However, his wife came back, but on 22-1-1980 when she had gone to see her mother, Mst. Rehmat Bibi (P.W. 2), she was again forcibly abducted by respondent No. 2 (Zafar Sultan) and was having sexual intercourse with her. He also abducted the minor child of the petitioner. The petitioner, therefore, was obliged to lodge another F.I.R. (on 25-1- 1980) under section 10(2) of Enforcement of Hudood (Zina) Ordinance, 1979 against Zafar Sultan and Mst. Ghulam Ayesha and a case was registered against them for these alleged offences. The above case was tried by the Additional Sessions Judge, Bahawalnagar, who, vide his judgment dated 10-7-1984, found both the accused to be guilty and sentenced both of them to undergo 5 years' R.I. Each alongwith 30 stripes and fine of Rs. 5,000 under section 10(2) of Ordinance VII of 1979.
3. In default of payment of fine they were directed to undergo further R.I. For one year each. Zafar Sultan accused was also convicted under section 16 of the Ordinance and sentenced to undergo R.I. For 4 years plus whipping numbering 10 stripes and a fine of Rs. 5,000 or in default of payment of fine further R.I. For one year. Both the substantive sentences were ordered to run concurrently.
4. The respondents filed an appeal against the above decision before the Federal Shariat Court (Criminal Appeal No. 127/1, of 1984) while Noor Hassan filed a revision (Criminal Revision No. 29/1, of 1984) for enhancement of sentence. Both the matters were heard and disposed of together by a Division Bench of the Federal Shariat Court vide judgment passed on 14-1-1985.
5. It may be mentioned that during the course of the trial Mst. Ghulam Ayesha made the following statement under section 342, Cr.P.C. Before the trial Court:- "I married my co-accused Zafar Sultan in the year 1979 of my own accord, My parents and other relatives were not agreeable on this marriage and got offended by this legal at of mine. I have 16 Acres of land in my name. My mother and my other relatives wanted to grab my property before my marriage with Zafar Sultan. I had illicit connections with one Mawwaz with the consent of my mother from whom I got conceived and gave birth to a son named Qazzafi who is still with me and is aged about 9 years. I had never married complainant Noor Hassan who is my maternal-uncle in relation. I call him as my maternal-uncle although he is not related to me directly. He had illicit connections with my mother. My mother had got a false case of theft registered against me in which I was acquitted. Complainant Noor Hassan has also got registered a case under section 498, P.P.C. Against my co-accused in which he was acquitted and now Noor Hassan a has again got this case registered against me and my co-accused. My mother has also instituted a civil case, relating to the land in my name, which is still pending in civil Court at Bahawalnagar. The complainant party wants to grab my property and because of that they had initiated false criminal and civil cases against me and Zafar Sultan."
6. As the case of the accused Mst. Ghulam Ayesha was that she had never got to married Noor Hassan, the learned Judges of the Federal Shariat Court observed that the main question which arose for consideration was "whether there was any valid Nikah between Noor Hassan and Mst.
7. Ghulam Ayesha accused solemnized on 18-8-1971 or not?" They added that "if the Nikah is established then the convicts have been rightly convicted but if the complainant fails to establish his Nikah dated 18-8-1971 then Mst. Ghulam Ayesha, being a major girl, could contract Nikah with the co-accused Zafar Sultan and then their convictions would be liable to be quashed". In this view of the matter they considered that "the most important question involved in the case is whether the marriage of Noor Hassan complainant with Mst. Ghulam Ayesha was solemnized on 18--8-1971 and if not what is its effect on the present case?."
8. The learned Judges, thereupon, after a thorough and pains--taking appraisal of the entire evidence reached the conclusion that the prosecution was not able to establish that any valid marriage or Nikah of Noor Hassan complainant with Mst. Ghulam Ayesha accused was solemnized on 18-8-1971. It was, therefore, held that since the prosecution was not able to establish the marriage between Noor Hassan and Mst. Ghulam Ayesha accused on 18-8-1971 beyond reasonable doubt and his alleged claim that Nikah was performed with, her on 18-8-1971 was, therefore, highly doubtful. Mst. Ayesha being a major girl could subsequently contract marriage with co-accused Zafar Sultan and their Living as husband and wife would not constitute any offence under the Ordinance.
9. As regards the conviction of Zafar Sultan accused under section 16 of the Ordinance is concerned it was held that since Mst. Ghulam Ayesha had herself admitted that she went to him of her own free accord and contracted a valid marriage with him and the couple was living as husband and wife, the said conviction was also liable to be quashed. On these findings the appeal was accepted and the conviction of Zafar Sultan and Mst Ghulam Ayesha set aside and both of them acquitted of the charges. The revision petition for enhancement of sentence, thus, failed automatically and was dismissed.
10. This petition for leave to appeal is directed against the above order of acquittal passed by the learned Federal Shariat Court.
11. We have heard Mr. Hassan Ahmed Kanwar, who has criticised the findings of the Federal Shariat Court to the effect that the factum of Nikah between Noor Hassan and Mst. Ghulam Ayesha had not been established and wished us to reappraise the evidence on this point.
12. We are not inclined to do so not only because of the thorough appraisement of evidence already made by the Court of appeal but also because we think that the re-opening of this matter will not he conductive in the interest of society or justice. We have already reproduced the statement of Mst. Ghulam Ayesha in which she has alleged that her mother encouraged her to have illicit relations with one Mawwaz from whom she got conceived and gave birth to the son, named Qazzafi. She has further stated that Noor Hassan, whom she treated as her maternal-- uncle had illicit connections with her mother. On this statement alone to cases were liable to be registered; one against Mawwaz and the other against her mother and Noor Hassan. In, all, the circumstances we feel that it would be best that this sordid matter is not reopened and pressed any further.
13. This being not at all a fit case for grant of leave to appeal is, accordingly, dismissed.