' FAKHRUDDIN H. SHAIKH, J.--The above two appeals are directed against the judgment of Sessions Judge, Attock, dated 6-5-1986, whereby the two appellants were convicted under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to suffer R.I. For three years each. Originally, they were charged under section 10(2) of the said Ordinance. The learned trial Judge found that the two appellants had only attempted to commit Zina, hence conviction under section 18 only. As the two appeals relate to the same judgment, hence they were heard together and shall be decided by this judgment.
2. Mst. Khudija Bibi appellant was married to deceased Muhammad Ramzan brother of complainant Noor Khan. It is admitted that Mst. Khudija Bibi, complainant Noor Khan and Samandar Khan, the father of complainant Noor Khan, lived in different portions of the same Haven having a common courtyard in village Dhoke Laniwala within the jurisdiction of Fateh Jang, Police Station.
3. It is alleged by the complainant Noor Khan that after the death of his brother Muhammad Ramzan, his widow Mst. Khudija Bibi appellant developed illicit relations with appellant Muhammad Safdar. This fact had come to the notice of the complainant and his father Samandar Khan, who had been admonishing Muhammad Safdar and preventing him from having any affair with Mst.
Khudija Bibi, but he did not listen to them. His house was situated just near the complainant's Haveli.
4. On the night between 19th and 20th of May, 1985 complainant Noor Khan woke up at mid-night on barking of dogs and found that Mst. Khudija was not on her cot. He took a lantern and also awakened his father Samandar Khan and proceeded to the room in which Mst. Khudija usually resided. It is alleged that they found both Mst. Khudija and Muhammad Safdar busy in committing Zina with each other. They chained the door of the room from outside and thus confined the two appellants inside the room. Complainant Noor Khan then proceeded towards Police Station Fatah Jang, which was 10 K.M. Away from his village and reached there at 7-30 a.m. On 20-5-1985 and lodged the report of the incident. Mr. Muhammad Khan, S.I. Recorded the F.I.R. Exh.P.D. And proceeded to the scene of offence i,e, the house of the complainant and Mst. Khudija Bibi appellant. The door of the room in which the two appellants were confined, was opened and both the appellants were arrested. Mr. Muhammad Khan recorded statements of witnesses and sent Mst. Khudija to civil Hospital, Fateh Jang, for medical examination. P.W.1, Dr. Mrs. Tanweer Fatima had examined Mst. Khudija on the same day i,e, 20-5-1985 at. 11-00 a.m. And found an under:- "(i) No mark of violence all over the body.
(ii) Breast fully developed.
(iii) Pubic hairs were dark coarse hair.
(iv) Labia majora and minora were apart.
(v) Hymen was torn off absent.
(vi) Vagina easily admits two fingers."
' Two vaginal swa bs were taken and sealed in a bottle and sent to the Chemical Examiner for detecting semen. The lady doctor found some stains on the Shalwar of the appellant. This Shalwar was also secured, sealed into a parcel and sent to the Chemical Examiner for report. The report of the Chemical Examiner Exh.P.F. In respect of swabs and the Shalwar was positive. The lady doctor, therefore, was of the definite opinion that Mst. Khudija had been subjected to sexual intercourse.
6. Appellant Muhammad Safdar was also sent for medical examination on 21-5-1985. He was examined by P.W.2 Dr. Ghayur Alam, who was of the opinion that appellant Muhammad Safdar was fit to commit sexual intercourse. After usual investigation the case was sent up for trial.
7. In support of the prosecution case 9 witnesses have been examined P.W.1 is Lady Dr. Tanweer Fatima and P.W.2 is Dr. Ghayur Alam, whose evidence has already been referred to above.
8. P.W.3 Abdur Rehman, constable had produced Muhammad Safdar appellant at Civil Hospital Fatah Jang for medical examination. His evidence is of a formal nature.
9. P.W.4 Nek Muhammad, Constable, had on 27-5-1985 received two sealed parcels containing Shalwar of Mst. Khudija Bibi and vaginal swabs for onward transmission to the Chemical Examiner, Rawalpindi.
10. P.W.5 Noor Khan complainant has deposed that on the night of incident he had woke up on barking of dogs, and found Mst. Khudija absent from her cot, that he and his father Samandar Khan then went to the room of Mst. Khudija Bibi and found both the appellants busy in committing Zina with each other and chained the door of the room from outside. He further stated that he immediately proceeded to the Police Station and lodged report in the following morning. He has proved the F.I.R. Exh.P.D. He stated that after the death of his brother Muhammad Ramzan, Mst.
Khudija, the latter's wife, had developed illicit connection with appellant Safdar. It was suggested to the witness in cross-examination that after the death of Ramzan he (witness) and his father Samandar Khan wanted the appellant Mst. Khudija to be married with his brother Noor Zaman so as to retain the share of property of deceased Ramzan in the family. The witness replied in the negative. He also denied that after the death of Ramzan, Mst. Khudija had contracted Nikah with appellant Safdar and that on the night of the incident. Muhammad Safdar was brought from his field and confined in the room with Mst. Khudija Bibi by the complainant and his father. The reply of the complainant to the above defence plea, suggested in cross-examination in his own words, was as under:- "It is incorrect that we came to know 2-3 days prior to the occurrence that Mst. Khudija has contracted marriage with her co-accused Safdar. It is incorrect that as the said marriage was contracted against our wishes, so it annoyed us. It is incorrect that on 20-5-1985 at evening time the accused Safdar came to his fields when he was forcibly removed by me, my father and others and confined him in the said room. It is also incorrect that thereafter Mst. Khudija was also confined in the said room and later on this case was registered against the accused falsely. I do not know if the accused are wife and husband inter se."
11. P.W.6 Samandar Khan is father of complainant Noor Khan, and father-in-law of appellant Mst.
Khudija Bibi. He has fully supported P.W.5 Noor Khan. In cross-examination, he denied that Mst.
Khudija Bibi wanted to contract Nikah with Muhammad Safdar against his wishes. The defence plea as suggested to complainant Noor Khan in cross-examination, was also suggested to this wiriness, whose reply was as under:- "It is incorrect that Mst. Khudija has contracted marriage with accused Safdar without our knowledge and consent. It is also incorrect that we came to know about their marriage 2/3 days prior to this occurrence. It is incorrect that on the day of occurrence the accused was present in his field in the evening when he was removed by me, my son and other persons forcibly . And confined in the said room. It is also incorrect that Mst.
Khudija was also confined in the said room and later on this case was fabricated against them. It is incorrect that the accused. .Are husband and wife."
12. P.W.7 Gulab Khan is a. Neighbor of the complainant. He had reached the house of the complainant on hearing noise at mid-night and found that both the appellants were confined in a room whose door was chained from outside by the complainant and his father. He further stated that he remained at the spot till the arrival of the Police in the following morning when the two appellants were brought out and arrested. In cross-examination, he denied that the two appellants had stated before the police that they were legally wedded with each other. He also denied that appellant Muhammad Safdar was given beating.
13. P.W.8 Muhammad Khan, S.I. Had recorded F.I.R., reached the scene of offence the same day i,e, 20-5-1985 and arrested the two appellants after having taken them out from the same room in the house of Samandar Khan. He has deposed that he had also received sealed parcels from Lady Medical Officer, which he had sent to the Chemical Examiner. He denied in cross-examination that Muhammad Safdar was given beating, but admitted that Muhammad Safdar had complained to him that he had received fists and kick blows on his person. He denied that the two appellants had claimed before him that they Were husband and wife. P.W.9 Muhammad Akram A.S.I. Had also partly investigated the case.
14. In his statement under section 342, Cr.P.C. Appellant Muhammad Safdar denied having commited Zina with Mst. Khudija Bibi. He claimed that Mst. Khudija had contracted Nikah with him three months prior to the incident and that the Nikahnama was also executed. His further defence plea was as under: "On the day of occurrence, I was taken from my field at about 'Namashanvela' by the complainant Noor Khan and thereafter, was locked up in a room. Thereafter, Mst. Khudija Bibi was also dragged inside the said room and later on they locked the said room. The complainant came to know about my marriage with my co-accused on that very day. I am innocent."
15. In her statement Mst. Khudija Bibi also claimed that after the death of her husband Ramzan, she had contracted Nikah with Muhammad Safdar appellant. Her further defence plea was as under:-- "My husband died about 3 years ago and thereafter I had been living in the house of my inlaws. I had a child out of my husband. My husband had his shares in the tractor, truck as well as in the lands.. The complainant wanted me to marry his younger brother Nur Zaman, to which I did not agree. About 3 months prior to this occurrence, I contracted marriage of my own accord with my co-accused. On the, night of occurrence my co-accused was called from his land situated adjacent to my house and was thereafter confined in the room and so also I was confined in the room just to make out a case of commission of Zina."
16. To prove the factum of Nikah, the two appellants have produced D.W.1 Karam Ellahi, D.W.2 Sher Jang. D.W.1 Karam Ellahi has deposed that one year ago accused Mst. Khudija Bibi had gone to the house of D.W.2 Sher Jang in village Bajal and contracted Nikah with Muhammad Safdar the nephew of Sher Jang. He further stated that he was witness of the Nikah; which was solemnised by Moulvi Wazir Alam of village Mansar. The witnesses admitted that he lives four miles away from village Bajal. He further stated that Muhammad Safdar was already married and that he had not produced any permission from his first wife to contract second Nikah with Mst. Khudija. He admitted in cross-examination that the Nikah was not registered and that no relation of Mst. ,Khudija Bibi including her brother or her father, was present at the time of this Nikah.
17. D.W.2 Sher Jang is maternal-uncle of Muhammad Safdar. He resided in village Bajal. He stated that on 1-3-1985 Khudija Bibi had come to his house and told him that she wanted to contract marriage with Muhammad Safdar. He called D.W.1 Karam Ellahi and Maulvi Wazir Alam, who solemnized Nikah of Mst. Khudija Bibi and Muhammad Safdar. In cross-examination, he stated that Muhammad Safdar had informed them that his first wife has already given permission to him for the second marriage with Mst. Khudija Bibi, but no permission in writing was produced. He further stated that no Vakeel of Nikah was appointed on behalf of Mst. Khudija Bibi. Besides the above evidence, the two appellants have also given statements on oath to the effect that before the incident they had contracted Nikah with each other.
18. So far as the plea of Nikah between the two appellants is concerned, it was disbelieved by the trial Court. He referred to the several circumstances which according to him militated against this plea. According to the appellant. Safdar, a Nikahnama was executed, but no such Nikahnama has been produced. No Vakeel of Mst. Khudija was appointed. No relation of Mst. Khudija including her parents was present in the ceremony. No satisfactory evidence has been led about non- availability of Moulvi Wazir Alam, who according to the prosecution, was a fictitious man. The Nikah is said to have been performed at village Bajal, where Imam of Mosque was available to solemnize Nikah ceremony. According to D.W.2 Sher Jang, Maulvi Wazir Alam belonged to village Mansar near Hazro. It has not been explained as to why the services of the Imam of the village were not availed of. No certificate of the Chairman concerned was produced to enable appellant Safdar to contract second marriage as laid down in section 6(1) of Family Laws Ordinance, 1961. In view of the above facts the learned trial Judge held that the defence plea of Nikah was false.
19. It has been argued on behalf of the appellants that when man and woman admit being husband and wife, then no further evidence is necessary to prove the factum of marriage. In support of this contention, reliance has been placed on the case of Arif Hussain and another v. The State PLD 1982 F SC 42 in which this Court held:- {{URDU TEXT}} ' The above dictum was followed by this Court in the case of Muhammad Ramzan v. Saeed and 3 others PLD 1983 F SC 483.
20.It cannot be deduced from the above cases that in every case where the two accused, one male and another female, claim to be husband and wife, they shall be entitled to acquittal on the charge of Zina. The Court has to see that the plea of Nikah is genuine and has not been taken simply to frustrate the charge of Zina. The Court has als to see that there are no circumstances which negate the existence o A Nikah. Simple plea of Nikah is not sufficient for acquittal. Accordin to section 4 of the said Ordinance, a man and woman are said to commit Zina, if they wilfully have sexual intercourse without bein validly married to each other. The man and woman referred to above, have to prove not only the 'Nikah' but valid 'Nikah' in order to obtain a finding of not guilty. In such cases the onus to prove valid marriage is upon the person who sets up such plea.
21. In the case of Shakir Muhammad v. The State PLD 1984 SC 353 it was held by the Shariat Bench of the Supreme Court that ever plea of Nikah would not attract the rule laid down in the case o Muhammad Azam v. Iqbal and others PLD 1984 SC 95. If the plea o Nikah is prima fade frivolous, vexatious or mala fide then, it was hel in the above case, the rule laid down in Muhammad Azam's case would not be attracted.
22. In the case of Muhammad Azam, referred to above, it was held inter alia:- "It is a major point of emphasis in this crime that the question of valid marriage when raised as a genuine plea in a trial for offence of Zina liable to be punished as Tazir, it has to be approached with extreme care and circumspection. The evidence and material regarding Nikah should be of high quality, incapable of admitting any doubt."
' It was further held:- "Far-reaching consequences of wrong findings of fact on plea of marriage, either way can well be visualized. Verdict in the affirmative not only gives legitimacy to conjugal intimacy and the off springs but also binds two persons in a solemn and pious bond which, in turn in our faith, creates rights and obligations of such permanent, nature that the life in this world and hereafter also are influenced. And similarly verdict in the negative amongst others, can have serious repercussions on the questions of legitimacy of conjugal contact, liberty/life of the accused the life of the off springs, in addition to the social complications for the future of the concerned individuals.
' A very delicate duty of recording, admission and appreciation of evidence falls on the two Courts of fact namely, the trial Court and the Federal Shariat Court.
' It is necessary for the two Courts to make every effort to reach the mark of perfection on the questions relating to facts, regarding the plea of valid marriage. Mere surmises and casualness where cold logic should be the rule might, as would be presently demonstrated by examining the interaction of section 3 of Ordinance which gives it the overriding effect and section 5 of the Family Laws Act which gives exclusive jurisdiction to the Family Courts on questions of marriage, prove harmful in so far as the working of this difficult branch of judicial administration is concerned. The apprehended erosion can, however, be checked if all necessary implications are kept in view."
23. In the above cases the plea of Nikah was taken by one of the parties and denied by other that is out of the man and woman one admitted the Nikah, while the other denied. Hence, the observations in the case of Shakir Mahmood are not attracted. Moreover, these observations were made in a leave granting order. We feel that question of Nikah between the two appellants should have been considered more thoroughly by the learned trial Judge keeping in view the dictum laid down in the case of Azam v. Iqbal etc. Parents of Mst. Khudija and first wife of appellant Safdar should have been examined on the factum of Nikah, as Court witnesses, appellant Safdar should also have bee called upon to produce the , mentioned by him in his statemen under section 342, Cr.P.C. WeNikahnama are, therefore, of the view that the case should be remanded to enable the trial Court to record furthe evidence on the question of Nikah and give a definite finding as envisage in the decision of the Supreme Court in Azam's case.
24. So far the offence of Zina is concerned, the learned trial Judge has held that none of the witnesses has deposed about actual penetration, hence the appellants can at the most be deemed to have attempted to commit Zina, an offence punishable under section 18 of the said Ordinance. We are not satisfied with this finding either. While discussing the question of Zina the learned Judge has failed to apply his mind to the evidence of P.W.1 Lady Dr. Mrs. Tanweer and the Chemical reports, Exhs.P.H. And P.Q. Nor given any reason for not relying on this evidence. This will be another ground for remanding the case for fresh decision.
25. Consequently the judgment of the trial Court is set aside and the case is remanded for fresh decision by Sessions Judge, Attock, in the light of the above observations. The parties shall be allowed to adduce further evidence for or against the disputed Nikah. The Court shall also be at liberty to call such other witnesses, who are deemed necessary to 'reach the mark of perfection on the questions relating to facts regarding the plea of valid marriage' as laid down in Muhammad Azam's case. Both the appeals stand disposed of accordingly.
26. Complainant Noor Khan has also filed a revision petition Criminal Revision No,22/L of 1986 praying for conviction of the appellants under section 10(2) of the said Ordinance and for enhancement of the sentences. In view of the remand of the case, the Criminal Revision Petition has become infructuous, and is, therefore, dismissed as such.
27. The two appellants are on bail. They shall appear before the trial Court on 28-7-1986. If they fail to appear on the above date, the learned trial Judge shall be at liberty to issue warrants against them or to cancel their bail, as deemed necessary in the circumstances of the case.