' The Additional Sessions Judge, Sahiwal, vide impugned judgment dated 2-11-1983 found guilty Qudratullah appellant and Mst. Kaniz co-accused under section 10(2) Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (hereinafter referred tows the Ordinance) and sentenced each of them to undergo R.I. For three years. Qudratullah was also sentenced with whipping numbering 10 stripes and fine of Rs, 1,000 or in default of payment of fine further R.I. For 3 months. The trial Court, however, acquitted Fazalur Rehman co-accused. Only Qudratullah convict has challenged his conviction and sentences by filing the present two appeals one at Lahore and the other at Islamabad. According to the office Mst.. Kaniz convict has not so far filed any appeal either at Lahore or at Islamabad.
2. In support of its case the prosecution has produced 6 witnesses. Ehsan All P.W.1 is the complainant and husband of convict Mat. Kaniz. He had submitted a written application Exh.P.A.
Before the District Magistrate, Sahiwal who directed the local police to register the case.
' In the said application 8 persons were shown as accused persons including the present appellant and Mst. Kaniz Fatima. On the basis of this application formal F.I.R. Exh.P.A/1 was registered by the police. The complainant has stated that he was married to Mst. Kaniz about 7 years back and she lived in his house as his wife for several years. About 2 or 21 years back Qudratullah appellant, Fazalur Rehman acquitted co-accused came to his house and stayed there for a night. On the next morning the complainant went outside for his work. In his absence Qudratullah appellant and said Fazalur Rehman co-accused took away his wife Mst. Kaniz from his house. On his return to his house, he did not find Mst. Kaniz there. He searched for her but was told by Noor Muhammad Lambardar and Akbar Gondal P.Ws. That she was seen going along with Fazal-ur-Rahman and Qudratullah accused towards Sahiwal. On the next day he along with Noor Muhammad Lambardar and Akbar Gondal P.Ws. Went to Chak No,24/14 L to the house of Qudratullah accused and asked him for the restoration of his wife Mst. Kaniz but he refused to restore her. Rather stated that he had married her. Qudratullah showed him Nikahnama which he kept with him. Thereafter he went to the police to lodge the report but the police did not register the case. Then he made written application Exh.P.A. To the District Magistrate, Sahiwal. He produced Photostat copy of his Nikahnama before the police, the original, of which was Exh.P.B. He also produced Photostat copy of Nikahnama of Qudratullah accused with Mst. Kaniz before the police, the original of which was Exh.P.C. He was confronted with his police statement Exh.D.A. Where he has stated certain things which supported the defence plea.
3. M.H.C. Ghulam Farid P.W.2 on 1-10-1980 on the receipt of application Exh.P.A. From District Magistrate, Sahiwal through Dak, recorded formal F.I.R. Exh.P.A/1. The application Exh.P.A. Consisted of Photostat copy of Nikahnama of Ehsan All with Mst. Kaniz Exh.P.B/1, Photostat copy of Nikahnama of Qudratullah with Mst. Kaniz Exh.P.C/1 and statement of Ehsan Ali written by A.S.I. Ghulam Qasim on 16-9-1980 Exh.D.A., copy of report No,8 dated 16-9-1980 written by S.I/S.H.O. Arifwala and statements of Ehsan Ali, Akbar Ali, Muhammad All along with report of Shari! Hussain A.S.I. Of Police Station Arifwala and report of Sadiq Hussain S.I. Police Station Arifwala, dated 22-9-1980. In cross- examination this witness has admitted that the application Exh.P.A. Was received by him ,on 1-10- 1980 through Dak.
4. Akbar Ali P.W.3 is brother-in-law of Ehsan All complainant. He has supported the version given by the complainant. He has deposed that about 2-3/4 years before at about 9/10 a.m. He alongwith Noor Muhammad was going to his house situated in Chak No,103/9L and when they were coming to Chak, Qudratullah, Mst. Kaniz and Fazalur Rehman accused met them on the way. They were going towards city. On his inquiry Mst. Kaniz accused told him that she was going to the city in order to make some purchases and she would return to the Chak at evening on the same day at evening time. This witness told Ehsan complainant about his wife Mst. Kaniz going alongwith Qudratullah, Fazalur Rehman accused towards the city. This witness alongwith Noor Muhammad Lambardar, Hamoon Khan and 5/6 other persons went to Chak No,24/14-L to Qudratullah accused as a Punchayat for the restoration of Mst. Kaniz accused. Qudratullah accused told them that he had married Mst. Kaniz accused and also showed them Nikahnama.
5. Ahmad P.W.4 claims to be an eye-witness of Nikah of Ehsan complainant with Mst. Kaniz. A.S.I.
Muhammad Ali P.W.5 partly investigated this case. A.S.I. Ghulam Qasim P.W.6 also partly investigated this case.
6. Qudratullah accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegation. When asked why this case was made against him and why the P.Ws. Had deposed against him, the accused stated as under:-- "I was married about 21 years' back with Ghulam Fatima. I had no issue from the said wife. My wife insisted that I should remarry for having issues. My relations contracted Fazalur Rehman co- accused for this purpose who took my brothers to one Shaukat Ali. Said Shaukat Ali told them that Kaniz Fatima accused was unmarried and that they could arrange her hands in marriage for me.
Said Shaukat Ali took Rs,10,000 from my brothers for the hand of Mst. Kaniz Fatima accused and arranged my Nikah with her. She never lived with me as wife. I did not know about her previous Nikah or marriage. Actually myself, my brothers and Fazalur Rehman co-accused were defrauded by said Shaukat Ali."
7. Mat. Kaniz co-accused in her statement recorded under section 342, Cr.P.C. Also denied the prosecution allegation. The following questions put to her and her answers are relevant:-- Q. Is it a fact that you are lawful wedded wife of Ehsan All complainant?
"A. "Yes. My step-mother married me against my wishes with Ehsan Ali complainant but I never lived with him."
"Yes. I married Qudratullah co-accused."
"I was not willing to live in the house of Ehsan Ali complainant as, his wife. One Shaukat All who is relation of my step-sister took me to Pakpattan and produced me somewhere in a Court and later on told me that he had obtained Talaq for me. He arranged my marriage with Qudratullah but after the Nikah we came to know that Shaukat All had defrauded with us. Therefore, I did not go to the house of Qudratullah accused. I never lived with him as a wife."
8. The accused produced two witnesses in defence. Fateh Muhammad D.W.1 has stated that he knew Mst. Kaniz. Her Nikah was performed with Qudratullah accused about 3 years back and he was the witness of that Nikah. According to this witness Mst. Kaniz was unmarried at that time. He was engaged as a Vakeel by one Shaukat who was known to him for the last about 20 years, and the said Shaukat had arranged the Nikah of Mst. Kaniz with Qudratullah. She did not go to the house of Qudratullah because Rs,6,000 were demanded for her Rukhsti. Subsequently the witnesses learnt that she was already married. In .Cross-examination this witness has admitted that the Nikah was performed in his house and he did not know if Mst. Kaniz was abducted by Shaukat or somebody else. Subsequently he learnt that she was wife of Ehsan Elahi complainant but at the time of Nikah he was not aware of this fact. Haji Muhammad Ibrahim D.W.2 has also made a similar statement and had witnessed the Nikah of Mst. Kaniz with Qudratullah accused.
According to him Mst. Kaniz had told at that time that she was unmarried.
' This witness has signed Nikahnama Exh.P.C. Rukhsti had not taken place in his presence.
9. The trial Court convicted and sentenced Qudratullah appellant as mentioned above but acquitted Fazalur Rehman co-accused.
10. I have heard at length the counsel for the parties who have taken me through the entire material available on the record.
11. The previous Nikah of Mst. Kaniz accused with Ehsan Elahi complainant on 10-11-1975 and her subsequent Nikah with Qudratullah accused on 4-8-1980 are not disputed. The question which arises for consideration is whether Qudratullah appellant had knowledge or information about her previous Nikah with Ehsan complainant. The learned defence counsel has relied upon the following pieces of evidence in this behalf:-
(i) Nikahnama Exh.P.C. Between Qudratullah appellant and Mst. Kaniz co-convict where against column No,5, Mst. Kaniz is shown as Kunwari. Her residence in column No,4 is shown as under:- "Mst. Kaniz daughter of Sardaran (late) Caste Gondal Mohallah Mir Baz Khan Pakpattan Gall Masjad Mai Hakan Wali Pakpattan Sahiwal."
(ii) Fateh Muhammad and Haji Muhammad Ibrahim are shown as witnesses of that Nikah and both have appeared as defence witnesses in this case. Fateh Muhammad D.W. Has stated that Mst.
Kaniz was unmarried at that time. Similarly Haji Muhammad Ibrahim D.W.2 has stated that Mst.
Kaniz had told at that time that she was unmarried.
(iii) Exh.D.A. Which is statement of Ehsan complainant dated 16-9-1980 recorded by A.S.I. Ghulam Qasim. The complainant was duly confronted with the statement. In this statement the complainant himself has stated as under:- {{URDU TEXT}} ' A perusal of the above shows that Mst. Kaniz was shown as virgin {{URDU TEXT}} and then her Nikah with Qudratullah was solemnised.
(iv) Qudratullah accused in his statement recorded under section 342, Cr.P.C. Has stated that at the time of his Nikah with Mst. Kaniz co-accused, she was shown as virgin{{URDU TEXT}} ' In reply the argument of the learned State counsel is that the complainant in his written application as well as statement recorded before the Court clearly alleged that the accused persons including Qudratullah accused were on visiting terms and had abducted Mst. Kaniz from the house of the complainant and, therefore, there was charge under section 16 of the Ordinance against this accused. However, this part of the prosecution case has been disbelieved by the trial Court and the relevant portion from the judgment is reproduced below:- "Learned defence counsel has brought on record the statement of Ehsan complainant Exh.D.A.
Which was recorded by P.W.6 Ghulam Qasim A.S.I. On 16-9-1980 before the registration of this case and was sent to P.S. Arifwala for necessary action because according to P.W.6 Ghulam Qasim S.I.
The occurrence falls within the territorial jurisdiction of P.S. Arifwala. The statement Exh.D.A. Of Ehsan complainant negates the prosecution version that Qudratullah and Fazalur Rehman accused enticed away Mat. Kaniz accused from the house of the complainant because it is recorded in Exh.D.A. That Mst. Kaniz accused had gone to see her parents in Chak No,23/EB. It is in the statement of Ehsan complainant that Fazalur Rehman and Qudratullah accused took Mat. Kaniz accused away with them in his absence from his house and he was told about it by P.W.3 Akbar Ali and Noor Muhammad P.W. (since dead) but the names of P.W.3 Akbar Ali and Noor Muhammad P.W. (since dead) have not been mentioned in the complaint Exh.P.A. To this effect. In this view of the matter, the prosecution story of enticing away of Mst. Kaniz accused from the house of complainant in his absence by both Qudratullah and Fazalur Rehman accused is doubtful. I am, therefore, of the view that the prosecution has failed to prove this part of the story that both Qudratullah and Fazalur Rehman accused enticed away Mst. Kaniz accused from the house of the complainant. I, therefore, acquit Qudratullah and Fazalur Rehman accused of the charge under section 16 of Zina (Enforcement of Hadood) Ordinance No, VII of 1979 by giving them the benefit of doubt."
' After the aboequoted observations and findings of the learned trial Court the learned State counsel is not in a position to rebut the argument of the learned defence counsel. It is not denied even by the learned State counsel that in the circumstances of the case Qudratullah appellant may be justified to believe that Mst. Kaniz was virgin {{URDU TEXT}}at the time of his Nikah with Qudratullah accused. In any case the prosecution has not established positively beyond reasonable doubt that Qudratullah appellant had knowledge or information at the time of his Nikah with co-convict, Mst. Kaniz Fatima that she was already married with Ehsan Elahi complainant. In any case on this aspect of the case an elements of doubt does exist in the prosecution case. The onus was upon the prosecution to establish beyond reasonable doubt that this appellant knew about the previous Nikah of Mst. Kaniz Fatima with the complainant. It is not denied that the benefit of doubt must be given to the accused.
12. Accordingly while giving the benefit of doubt to Qudratullah appellant I accept this appeal, set aside his conviction and sentences under section 10(2) of the Ordinance, and acquit him of the charge. He shall be released forthwith if not required in any other case.