MUHAMMAD AFZAL ZULLAH, J.--This is a classic example visualised in Muhammad Azam v.
Muhammad Iqbal and others PLD 1984 SC 95 wherein only passive participation in the trial by the presiding officer, it seems, has resulted in miscarriage of justice. The story is usual. Zubaida petitioner was betrothed to Yaqoob her co-convict--a relative. Munir complainant ultimately got promise of her hand. Before marriage, she ran away to Yaqoob and married him in May, 1973. She was inveigled and brought back on promise of regular Rukhasti to Yaqoob. But was married off to Munir ante-dating this Nikah by a week before Yaqoob's Nikah. There were Habeas Corpus proceedings also but the love couple lost in this first round. She gave birth to several children in the house of Munir. The love for the first man had not died though. She again ran away to Yaqoob after eleven years in 1984 and started living with him under a genuine belief that this marriage was proper and that the one with Munir was no real marriage. The police sided with the accused couple and refused to register the case. There was Writ Petition by Munir. The police was thus compelled to book both Zubaida and Yaqoob for offence of Zina. This all is in her statement under section 164, Cr.P.C. And other records. This version, however, it seems, has not been clearly taken in the statement under section 342, Cr.P.C. Nor marshalled properly by the defence; probably because of inexperience or gross negligence of the lawyer.
2. The trial Court did take note of statement under section 164, Cr.P.C. For assuming that there was sexual intercourse but unfortunately it neither paid any attention to the other part of the statement nor performed its duty under section 540, Cr.P.C./165 Evidence Act to do justice in at least summoning evidence regarding the documents which were lying on its records, e.g. There is a Nikahnama dated 3-5-1973 on record. It is of Zubaida's marriage with Yaqoob. Her Nikah with Munir is of 30-4-1983-- figure 83 having been scored and overwritten as 73. Again it is in evidence that the name of Zubaida on the register of Nikah with Munir is over-written on a scored entry. Both the Courts below failed to notice the elements supporting the defence version and also did not care to reconcile the weak links in the prosecution case.
3. Two prima facie adverk elements in the conduct of the petitioner are:
(a) That she has disowned her children from Munir's loins; and
(b) that if she did give birth to those children in Munir's wedlock, how could she justify union of marriage with Yaqoob without seeking divorce whether in 1973 or in 1984.
' However, both points stand explained in the defence version which, as stated above, has not been properly noticed.
4. In her statement under section 342, Cr.P.C. She was asked unfortunately and improperly a composite question about a valid nikah with Munir and valid birth of children from this wedlock. It was unfair to her. She denied the question and it fitted in her version---as, according to her, she was not validly married to Munir and thus the children from this wedlock could not be owned by her. She at no place denied having given birth to those children. On the contrary she has been crying for them as of her owr and not of Munir. That is why she requested that the youngest be allowed to stay with her in jail and the authorities allowed it. The learned Courts below did not at all notice the nature of denial under section 342, Cr.P.C. It should have been read with her entire story wherein she admitted the birth of the children.
5. The second point also stands explained from her point of view. According to her, Munir's marriage was later than Yaqoob's (in fact), but it was ante-dated on paper. Therefore, it was void without a divorce from Yaqoob. It was a very important point, that is why the Investigating Officer when asked that the two versions about the two Nikahs having been brought to his notice, did he try to find out which was true, answered in the negative. As it was essential part of the investigation, the police file when examined, revealed that the Investigating Officer wanted to go deep into this question so as to do justice and asked the complainant to help him by producing the other relevant documents. The latter promised to do so. But then something odd happened during the investigation. It was suddenly clamped and the accused were hooked. The reason can only be conjectured.
6. After careful and minute examination of the case there is sufficient justification for examination of the following points:--
(i) Whether the trial Court failed to perform its duty regarding bringing on record relevant evidence through Court orders as visualised in Azam's case;
(ii) Whether the prosecution has established the case beyond reasonable doubt, in particular about the Nikah of Munir;
(iii) Whether Zubaida's act in question amounted to wilful indulgence in Zina;
(iv) In case the trial is vitiated due to material omissions or other illegalities, what should be the Court's order---extention of benefit of doubt to the accused; otherwise acquittal or retrial; and
(v) other related questions.
7. I would, therefore, hold that it is a fit case for grant of leave to appeal. Before parting with the matter it needs to be noticed that prima facie the trial defence-lowyer acted carelessly and the lawyers' firm which undertook petitioner's defence at appeal stage, seems to have left her in the lurch and she filed this jail petition without legal assistance in such a complicated case. It can be due to the mistaken belief that she was a bad woman having given up her children for lover's sake: It might also need examination:
(1) whether rules of professional conduct were not violated; and
(2) how to eradicate these shortcomings where rustic poor ladies .Are involved in such like cases when they arc forsaken by their kith and kin.
8. In case leave to appeal is granted, I would also suspend the sentence of the petitioner during the pendency of the matter in this Court on her furnishing of bail bond in the sum of Rs, 10,000 with one surety in the like amount to the satisfaction of the A.C. Concerned.
' NASIM HASAN SHAH, J.--(1) I think the order of the Federal Shariat Court is not liable to interference.
(2) The convict is disowning the 'children and can hardly evoke sympathy on their becoming hopeless.
(3) Not a fit case for grant of leave.
' SHAFIUR RAHMAN, J.--I agree that the Leave to Appeal be granted and the sentence suspended on terms. ORDER OF THE COURT Leave to appeal is granted. The sentence of the petitioner is suspended. Subject to her furnishing bail bond in the sum of Rs, 10,000 with one surety in the like amount, she will be released on bail.
Bail, to the satisfaction of the A.C. Concerned.