1. ' MUHAMMAD AFZAL ZULLAH (CHAIRMAN).--Thisappealthrough. Leave of the Court is direCted against the judgment dated 17-6-1986 of the Federal Shariat Court; whereby the appellants' conviction under sections 11, 1:0(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and heavy sentences thereunder- were upheld.
2. ' The defence plea as contained in the statement of Allah Ditta appellant, the main accused in the case, was that M-st. Kalsoom Bibi the prosecutrix in this case was betrothed to him; but, subsequently the complainant side refused to abide by their commitment. Their attitude not having been accepted by her she out of her free will came to him and they entered into lawful valid marriage. Thereafter', obviously for this very reason he and his other relations, including his co- appellant were falsely involved in the case.
3. ' Leave to appeal was granted to examine; whether, on the basis of bona fide plea of valid N1kah the petitioners could be granted benefit in pursuance of the rule laid down by this Court in the case of Muhammad Azam v. Muhammad lqbal and others PLD 1984 SC 95.
4. ' In is case the defence plea of valid marriage, it is obvious from the record, was neither frivolous nor absolutely baseless and the same upto betrothal stage does not seem to have been denied by C the complainant side. Their denial about the valid marriage has to be put in juxtaposition to the very strong and confidentily raised defence plea referred to above.
5. ' In addition to the raising of the specific and strong plea the defence produced "witnesses of Nikah including the Nikah Khawan. It gives plausibility to the above-referred Nikah. The treatment of this defence plea' by the Federal Shariat Court, with respect, is not adequate. After pointing out some minor usual discrepancies, which can emerge even in acceptable evidence, the learned Judges did not attach due importance to the character of the defence evidence which D included a Chairran of the Union Council and th,e Nikah. Khawan. Nor was due attention paid to the strong support given by the Court witnesses to the defence plea; particularly, in the deposition of an Advocate (as Court witness) who had himself acted as a witness/Vakeel in the Nikah. Same applies to the Nikah witnesses and Nikah Name.
6. ' We having examined the reasoning in the impugned judgment in this behalf and having put the defence version, the defence evidence and the depositions of the Court Witnesses, against the prosecution version on the question of valid marriage, feel satisfied that the defence did succeed in establishing that their plea of marriage was bona fide and that it could reasonably be true. In such like circumstances it may be necessary to establish with reasonable certainty the correctness of the defence version about the marriage. However, Section 4 of the Ordinance also requires the act to be "wilful" so as to constitute "Zina". In the. Circumstances of this case, it was not established as "wilful" because of the evidence on Nikah, which produced the above stated effect. That being so, the prosecution has failed to establish the case, against the appellants beyond reasonable doubt. The due benefit, on this basic fact and principle could be extended to the accused. The principle that such a doubt keeps alive both versions, for other consequences, the rule raid down in the, case of Sher Hassan v. The State PLD 1959 SC (Pak.) 480 is instructive.
7. ' Accordingly, this appeal is allowed. The afore explained benefit of doubt is extended to the appellants and on that basis alone their conviction and sentences are set aside. They shall be set at liberty if not required in any other matter.
8. ' It needs to be clarified that the acquittal being on benefit of doubt regarding the Nikah/marriage, the principle as in She Hassan's case would be attracted to the peculiar situation in this case also; namely, that both versions about the Nikah and Marriage being reasonably possible the complainant, has only thus failed to establish the case against the accused; on the criminal side.
9. That being so, it will not affect the parties' position in the other litigation or the matrimonial status of either of them.
10. ' With the foregoing decision, order and observations this appeal stands disposed of.