1. NASIM HASAN SHAH, J.--This judgment will dispose of Criminal Appeal Nos. 12(S) and 13(S) of 1985, as both arise out of the same occurrence.
2. The relevant facts stated shortly are that on 21-8-1980 at about 11-00 a.m. The complainant (P.W. 4)
3. Ghulam Muhammad son of Raja, caste Mochi, lodged an F.I.R. (Ex. PA) at Police Station Kot Moman, District Sargodha wherein he alleged that he was married to Mst. Kaniz Bibi (appellant in Criminal Appeal No. 13(S) of '1985) since the last 5 years and that out of this wedlock a baby-girl had been born but she had died after remaining alive for 2/3 months; that since some time he had. Been living with his wife at Dera Sain Murad, where he was employed with Ahmad son of Sada; however, about a month and a half ago on returning home from his daily work at Dopeharweia (midday), he did not find his wife present in the house. He inquired about her whereabouts from the neighbours whereupon Muhammad Amir (P.W. 6) and Muhammad (P.W.7) told him that they had seen his wife Mst. Kaniz Bibi (appellant in Cr. Appeal No. 13(S) of 1985) going in a tonga with Lala (appellant in Cr.
4. Appeal No. 12(S) of 1985) at Chahwela (morning hours) who was accompanied his brother Ahmad Yar alias Tara (acquitted co-accused). He went to the house of said Lala and Ahmad Yar alias Yara and demanded the return of his wife Mst. Kaniz. But although they had promised to return her to him but later on refused to do so. The allegation of the complainant was that the said Lala and Ahmad Yar allas Yara had abducted his wife Mst. Kaniz Bibi during his absence from the house for committing Zina with her.
5. The Additional Sessions Judge, Sargodha, who tried the aforesaid three accused persons under the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) by his judgment dated 11-2-1982 acquitted Ahmad Yar alias Yara because of the absence of any evidence against him; he also acquitted Lala of the offence under section 11 of the Ordinance on the ground that co-accused Mst.
6. Kaniz Bibi was a major. He, however, found Lala (appellant in Cr.A. No. 12(S) of 1985) and Mst. Kaniz (appellant in Cr.A. No. 13(S) of 1985) guilty of the offence under section 10(2) of the Ordinance on the ground that Mst. Kaniz was the legally wedded wife of Ghulam Muhammad complainant and that Lala and Mst. Kaniz had been committing Zina with each other out of which a son had even been born to Mst. Kaniz Bibi. Hence both of them were guilty under section 10(2) of the Ordinance.
7. They were convicted accordingly and sentenced them to undergo rigorous imprisonment for 10 years each. Besides Lala (appellant in Cr.A. No. 12(S) of 1985) was also sentenced to suffer 30 stripes by whipping.
8. Against the aforesaid judgment the convict Lala (appellant in Cr. Appeal No. 12(S) of 1985) alone wrent in appeal before the Federal Shariat Court. But the same was dismissed by the learned Single Judge of the said Court vide judgment dated 22-8-1984. Leave to appeal from this judgment was sought by him from Jail (J.P. No. 9-R(S) of 1984).
9. It may be mentioned that DAst. Kaniz Bibi (appellant in -Cr.Appeal No. 13(S) of 1985) did not challenge the conviction and sentence passed on her by the Additional Sessions Judge or the Federal Shariat Court. However, on a query made from her by the learned Chairman of the Shariat Appellate Bench of this Court (through the Jail authorities) about her position in the matter she has also submitted a petition for leave (through Jail) to this Court (J.P. No. 2-R(S) of 1985). This petition came up for consideration, by circulation along with the leave petition already submitted by Lala (J.P. No. 9-R(S) of 1984) and by majority it was decided to grant leave to appeal to both. The reasons for this are summarised in the order of the majority, as under:-- "Complainant admitted under cross-examination that he falsely charged Yara. The effect of this admission would need examination. It will also require examination as to what is effect of non- registration of the first marriage when the register was available with another person. As to second marriage it would be necessary to examine whether rule in Azim's case (PLD 1984 S.C. 95) was satisfied without examining as Court witness Maulvi Haq Nawaz (D.W. 1). And whether it was not a fit case for trial as family Court".
10. We have gone through the evidence on the record, with the assistance of the counsel. Ghulam Muhammad, P.W. 4, (complainant) has no doubt in his statement deposed that Mst. Kaniz was married to him four or five years prior to the occurrence and out of this wedlock a daughter was born, who died later on, but these allegations are denied by Mst. Kaniz. To clarify the position, the trial Court examined as a C.W.l. Maulvi Muhammad Ismail, Imam Masjid, who claimed to be the Nikah registrar of Dhingranwali. According to him he performed the Nikah of Mst. Kaniz Bibi with Ghulam Muhammad complainant, but he did not enter the Nikah in the register. The reason for not doing so, according to him, was because the register was not with him.
11. On the other hand, " the appellants examined Moosa son o1 Maula Bakhsh in their defence as D.W. 1.
12. According to him Mst. Kaniz was not actually married to Ghulam Muhammad complainant but was about to be forcibly married or sold to him, by her mother foi Rs.5,000. Mst. Kaniz, therefore, begged the witness (Moosa D.W.1) to save her from this fate. She also told him (Moosa D.W.1) that she was already engaged with Lala (co-accused)--who is also her cousin -- and wanted to marry him. On her entreaties the witness summoned Maulvi Haq Nawaz, also an Imam Masjid, who performed the Nikah o1 Mst. Kaniz Bibi with Lala accused. This Nikah too is not registered. However, the Court did not unfortunately summon Maulvi Haq Nawaz as a Court witness to clarify the matter further. . Undoubtedly the mother of Mst. Kaniz, namely, Mst. Rabia Bibi - who also appeared as a Court witness - has stated that Mst. Kaniz was married to Ghulam Mohammad complainant and that Lala had later on abducted her and they were living in adultery and that Mst. Kaniz has given birth to a son from Lala accused. But both Lala and Mst. Kaniz in their statements under section 342 Cr.P.C. have stated that Mst. Rabia is supporting Ghulam Muhammad complainant because the sister of Ghulam Muhammad complainant namely Mst. Rasoolan has been given in marriage to Bashir, the real .Brother of Mst. Kaniz and in exchange Mst. Rabia wanted to give the hand of Mst.
13. Kaniz to Ghulam Muhammad complainant but she (Mst. Kaniz) was not willing to be so bartered and being a major had of her own free will contracted the marriage with Lala co-accused.
14. Reverting to the evidence of the prosecution while the complainant Ghulam Muhammad asserted that he was married to Mst. Kaniz and even a daughter was born out of this wedlock but she died.
15. But his claim to be a true and honest witness is severely shaken by the circumstance that he has himself admitted that he had implicated Ahmad Yar falsely, as an accused. In cross-examination he admitted: "I was satisfied that Ahmad Yar accused was innocent in this case" and went on to say : "I named Ahmad Yar accused in my statement Ex. P.B. Because he was brother of Lala accused". Thus, he is a self confessed liar.
16. The evidence of Maulvi Muhammad Ismail, C.W., the Nikah Registrar, would norma)ly have been of great weight but unfortunately he admits that he did not enter the Nikah of Ghulam Muhammad with Mst. Kaniz in his register. The reason given by him for not doing so is that he had no register with him at that time. This plea can hardly be accepted. As for the evidence of Mst. Rabia, the mother of Mst. Kaniz, her evidence too has to be taken with great caution because she is deeply interested in saving the marriage of her son Bashir with Mst. Rasoolan - the real sister of Ghulam Muhammad complainant.
17. On the other hand, there is evidence on the record of Moosa son of Maula Bakhsh on 'behalf of the defence to the effect that Mst. Kaniz was married to Lala (co-accused) and that this was the only marriage contracted by Mst. Kaniz. Moosa D.W. 1 has also stated that the Nikah of Mst. Kanfiz with Lala (co-accused) was performed by Maulvi Haq Nawaz. No doubt, this Nikah too has not been registered and Maulvi Haq Nawaz has also not been summoned in Court to give evidence to prove this Nikah; but both Mat. Kaniz and Lala support this version, deposed to by Moosa. In case the alleged marriage between Mst. Kaniz and Ghulam Muhammad is not proved, the factum of Mst.
18. Kaniz having contracted a marriage with Lala can be accepted on the basis of their aforesaid statements. Moreover, a son has also been born out of this union.
19. In view of the state of evidence on the record I cannot hold with any degree of confidence that the prosecution has established its case beyond any reasonable doubt that Mst. Kaniz and Ghulam Muhammad were legally married to each other before Mst. Kaniz married Lala accused and, therefore, in the interest of safe dispensation of justice I would hold that the prosecution has failed to prove that the appellants are liable to be convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and would, accordingly, acquit both of them of this charge.
20. On this view of the matter the appeals succeed and are allowed with the result that both the appellants are acquitted.
21. Per Nasim Hassan Shah, J Maulana Muhammad Taqi Usmani, J., who also heard these appeals not being available has not signed the judgment. This judgmentishall, therefore, be read as judgment of the majority.