This revision is directed against the judgment dated 17th May 1969 passed by the learned Sessions Judge, Khairpur Mirs, by which he upheld the conviction of applicant Mst, Rajbai under section 494, P. P. C. and that of the other two applicants Abdullah and Qalander Bux under section 494 read with section 114, P. P. C. The sentence of Mst. Rajbai was, however, reduced to imprisonment till rising of the Court but a tine of Rs. 1,000 was imposed and in default she was ordered to suffer l2 months' rigorous imprisonment. The sentence of l2 months' passed on each of the other two applicants was maintained.
2. Upon a complaint filed on 21st May 1966 Rahimbux alleged that he was married to Mst. Rajbai on 4th January 1966 vide Nikahnama' (Exh. 1-A) and during the subsistence of this marriage she lived with him for sometime and thereafter disappeared from the house, and contracted a second marriage on 27th January 1966 with applicant Abdullah and again returned to the house. It was only 9 or 10 days earlier that she again left and it then transpired that she had contracted the second marriage. 1 he accusation was made against 9 persons out of whom only the present applicants were convicted.
3. At the trial Rahimbux examined himself. Mulla Jiand who performed his nikah with Mst. Rajbai; Imam Bux, a witness of his marriage, Nazal, a vakil of his marriage, Bachai, a witness of the second marriage, Fazul, father of Mst. Rajbai and Allahbux, one of the arbitrators who had given a 'faisla' for her return to Fazul.
4. The applicants in defence examined Qalab Abbas, Allahwasayo, Mst. Sobhaji, mother of Mst.
Rajbai, Mouladad and Dur Muhammad in support of the plea that Mst. Rajbai was not married to Rahimbux as alleged.
5. The trial Court accepted the evidence led on behalf of the complainant Rahimbux and held that it has been established that Rahimbux was married to Mst. Rajbai and in this view of the matter the second marriage of Mst. Rajbai with Abdullah was performed at a time when her husband Rahimbux was alive and with the knowledge of his earlier marriage and accordingly recorded the conviction as stated above. On appeal, the learned Sessions Judge accepted the evidence led to establish the guilt of the applicants and maintained the order of conviction and the sentence except to the extent mentioned above.
6. Mr. Sami Ahmad, the learned counsel for the applicants, has urged that the evidence led does not conclusively establish the first marriage and in this light the view taken by the Courts below cannot be upheld. To support his argument, he invited my attention to the testimony of Mullah Jiand (P. W. 2), Allahbux (P. W. 8), Qalab Abbas (D. W. 1), Allahwasayo (D. W. 2), Mst. Sobhagi (D. W.
3) and Mauladad (D. W. 4), Rahim Bux, Imam Bux, Nazal and Fazul have supported the version of complainant Rahim Bux that he was married to Mst. Rajbai on 4th January 1966. However, Mulla Jiand, who it was alleged had performed the nikah, has not supported the complainant on this aspect of the case. According to this witness he had not performed the nikah but had merely registered it at the instance of Head Constable Sohrab. This witness was declared hostile, nevertheless his testimony cannot be brushed aside merely upon this premises, since the complainant had himself chosen to examine him and it was for him to see whether his examination as a witness would advance the case. Having done so, his evidence cannot be minimised if he did not support the complainant's version. He has also produced a copy of the letter (Exh. 2-A) alleged'to have been written to the Chairman, wherein he stated that he was forced to recite the nikah even though he had protested that the earlier nikah of Mst. Rajbai had already been registered, whereupon he was beaten by Sohrab. In his cross-examination he stated that he anti-dated the date of nikah to 4th January 1965 at the instance of Sohrab. To a Court question he admitted that he had performed the nikah of Mst. Hakimzadi, sister of Mst. Rajbai to Karim Bux on 4th January 1966. This Karim Bux is the brother of Rahimbux. In this context it would be pertinent to refer to the evidence of Mouladad. He has produced the Nikahnama Register, in which the marriage of Mst.
Rajbai with Rahim Bux is entered at serial No. 31, whereas the serial number of the nikah of Mst.
Hakimzadi with Karimbux is 30. The date of the marriage of Mst. Hakimzadi is shown as 4th January 1966 but from him no date was brought out of the marriage entered at serial No. 31. However, entry No. 220 in the Union Council Register shows that the marriage of Rahimbux with Mst. Rajbai was registered on 3rd February 1966. This entry was discarded by the trial Court upon the ground that the register was not properly maintained. One feature is significant, and that is that if the marriage of Mst. Rajbai was also performed on the day on which the marriage of Mst. Hakimzadi was solemnised why was it that Mst. Hakimzadi's marriage is entered on 4th January 1966, in the Nikahnama Register while that of Mst. Rajbai in the Union Council Register on 3rd February 1966. It is not the prosecution case that on 4th January 1966 there was any dispute about the first marriage and accordingly no reason appears for this delayed entry in the Union Council Register. Mullah Jiand's statement thus receives support from this entry, particularly when it is not alleged that this entry was fabricated in the register by Mulla Jiand or some one at the behest of Mst. Rajbai or the other applicants. The Courts below did not consider the evidence from this angle and while the trial Court disregarded the entries of the official register maintained pursuant to the rules framed under the Family Laws Ordinance, 1961, the appellate Court merely affirmed the finding that the marriage was not performed on 3rd February 1966.
7. One other document which needs consideration is Exh. 6-D. This endorses the 'faisla' of the arbitrators and was produced in evidence by Haji Allahbux, one of the arbitrators. It is curious that in it no reference is made to the first marriage of Mst. Rajbai. The aggrieved party is also not Rahim Bux but her father, Fazul, who had lodged the report of her forcible abduction on lst February 1966 although she was actually alleged to have been abducted on 24th January 1966. If she was married as alleged by the prosecution, then why was it that her abduction was the only subject- matter of dispute before the arbitrators and why should her father be a party instead of her husband.
8. It is also surprising to find from the evidence of Rahimbux that Mst. Rajbai disappeared clandestinely to contract the second marriage ; while a case of abduction is alleged by her father, Fazul, Mst. Sobhagi, the mother of Mst. Rajbai, has denied her earlier marriage with Rahimbux on 4th January 1966. Her evidence was discounted upon the ground that she had a dispute with her husband, Fazul, and that mother generally side with their daughters. This is hardly a reason for rejecting her evidence when no other infirmity was brought out to minimise its effect.
9. The trial Court while examining Mst. Rajbai put the question as to whether she had signed Exh. 1- A, which she denied. There purports to be on this document the thumb-impression of Mst. Rajbai but the trial Court did not take the trouble of looking into the document before putting this question. No evidence was led to establish that the thumb-impression on this document was that of Mst. Rajbai except the evidence of witnesses who had gone a long way to support the prosecution case. Exh. 6-C, which is a statement on oath made before the First Class Magistrate, was also not put to Mst. Rajbai in her statement and accordingly it has to be disregarded. Similarly Exh. 6-A, which purports to be a gift deed, was also not put to Mst. Rajbai. Besides, the execution of this document has not been proved as neither the executant nor the attesting witnesses were examined. Additionally it required registration but was not registered. Apart from the technical objections against the reception of the document it cannot also be read in evidence, for the same reason as in the case of one other documents. The Courts below have considered this document as a significant piece of evidence in support of the first marriage upon the ground that it conveyed settlement of the property to Mst. Rajbai immediately before her marriage. This conclusion cannot be reached as the document could not have been taken into consideration. Allawasayo, whose name is entered in the nikahnama (Exh. 1-A) relating to the first marriage has not supported the prosecution case and has stated that he was forced to sign at the instance of Head Constable Sohrab. Qalab Abbas has supported Mulla Jiand and while disregarding his evidence the appellate Court observed that :-- "He admits that he was working as a peon in the office of the District Magistrate but was discharged from service and is a history-sheeter. He is an interested witness and has little sanctity for oath. His evidence, therefore, merits no consideration."
This statement is wrongly ascribed to him, for he had never said so. Apparently the appellate Court misread the evidence and rejected it on this ground, lt was only to Allahwasayo that a question was put as to whether he was employed as a peon in the office of the District Judge, to which he replied in the affirmative but stated that he was discharged about l2 years back.
10. In the light of what has been discussed above there was only the version of the prosecution witnesses as to the solemnisation of the marriage of Mst. Rajbai on 4th January 1966. The date is in doubt from what has been assessed above and in this view of the matter it is not established beyond reasonable doubt that the second marriage was contracted during the subsistence of the first marriage. Accordingly the prosecution has failed to establish this essential ingredient, with the result that -the case must fail against the applicants I accordingly set aside their conviction and the sentence imposed therefor. The fine, if paid, should be remitted. This application succeeds and the applicants, who are on bail, need-not surrender and their bail bonds are cancelled. .