MIR HAZAR KHAN KHOSO, J: -- This appeal is directed against the judgment, dated 8-6-1991 passed by the learned Sessions Judge, Swat, whereby appellant Bakht Jehan and his co-accused Mst. Gut Sahiba (not filed appeal) were convicted for the offence and sentenced as under:--
(i) Appellant Bakht Jehan: Under section 13 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) to suffer imprisonment for life, thirty stripes and fine of Rs.2,000 or in default to undergo R.I. For six months more.
Under section 16 of the Ordinance to suffer R.I. For three years, ten stripes and fine of Rs.1,000 or in default to undergo R.I. For three months more.
(ii) Mst. Gul. Sahiba: Under section 10(2) of the Ordinance to suffer R.I. For five years, thirty stripes and fine of Rs.2,000 or in default to undergoR.I. For six months more.
2. On 10-7-1989 complainant Gut Hamad lodged complaint with Rahman Nazir Khan, S.H.O. Police Station Alpuri that one and half years back his son Gulshan was married with Mst. Gut Sahiba. His son lead gone to earn livelihood at Quetta. Mst. Gut Sahiba used to reside with him in his village. On the preceding night appellant Bakht Jehan in connivance with his brother Sultan Zeb had enticed away his daughter-in-law Mst. Gul Sahiba with intention to get her married or have illicit intercourse with her. On his report F.I.R. No.52 of 1989 was registered at the police station. A.S.I. Sher Hussain went to the Vardat and prepared the site plan. He recorded statements of the witnesses.
On 17-7-1989 he arrested appellant Bakhat Jehan and acquitted accused Sultan Zeb. On 19-7-1989 the case came in charge of Muhammad Amin Inspector, C.I.A., who recorded statements of the witnesses. On 6-9-1989 I.H.C. Gut Sher went to Shergarh for recovery of Mst. Gut Sahiba. She was produced before him by one Gut Muhammad. Mst. Gut Sahiba was produced for medical examination before Dr. Saeeda Amin, whose evidence is as under:- "On 7-8-1989 at 8-25 p.m. I examined Mst. Gut Sahiba brought by the police for medical examination. I examined her and recorded the following observations:-- Rounded scar on left knee joint.
She was aged about 19/20 years at the time of examination.
(1)At the time of examination I could not determine that whether she was subjected to sexual intercourse or not as she was a married woman.
There were no suspicious spots present on the Shalwar. No bruises or swelling present on the private parts. No blood or discharge P/V present.
Two vaginal swa bs were taken and sent to Laboratory for further confirmation.
(2)She was not pregnant. P/V Examination. Vulva--vagina health, cervix health. Uterus normal size.
Well mobiled FX clear.
My report on application Exh.P.W.15/1 is correct and correctly bears my signature. It is Exh.P.W.15/2.
It is correct that the female accused above named was not accompanied by the Lady Constable when she was brought before me for her medical examination. It is not essential that in such like cases the victim should be examined in the Labour Room. It is, however, correct that in the presence of man, the ladies are not medically examined. Similarly, in this case too the lady accused was not examined in view of the male person. It is correct that the Nurses remain present for duty with the Lady Doctor. The vaginal swabs were not taken in the presence of any male person. The vaginal swa bs were sealed into parcel and signed by me,"
3.On 10-9-1989 164, Cr.P.C. Statement of Mst. Gut Sahiba was recorded before Syed Ghafoor Shah, M.I.C. On 21-8-1989 appellant Bakht Jehan was examined by Dr. Sari Ram, whose report is as under- - "On 21-8-1989 at 1-30 p.m. I examined Bakhat Jehan son of Qalandar brought by Gul Sher I.H.C. C.I.A.
His identification marks are:-- a scar on the forehead at its middle. A big scar on the front and medial wall of the axilla left.
I examined him according to the questions asked:-- Answer to question No. 1. On external appearance of the body, health with well-developed genital organs. He could perform sexual act. By appearance he was about 35 to 40 years of age having 32 teeth., hair growth on the body with few grey hair on the upper chest, beard, moustaches and head. My report in this respect is Exh.P.W.14/1. It is correct and correctly bears my signature on the back of application Exh.P.W.14."
4. Mst. Kharboza was also arrested by the police. However, after usual investigation the case was sent up for trial before the Court of Session, Swat, where the prosecution examined witnesses:-- P.W.1 Gul Hamad, Complainant and father-in-law of Mst. Gul Sahiba.
He has corroborated his complaint.
P .W.2 Jamshid Shown his ignorance about the incident.
P W 3 Syed Rahim.
He performed Nikah ceremony of Mst. Gul Sahiba with Gulshan.
P.W.4 Mst. Wazira She is mother of Mst. Gul Sahiba. She supported the complaint and marriage with Gulshan.
P.W.5 Lal Sher.
He is cousin of appellant Bakht Jehan and Sultan Zeb. On the day of incident he saw Mst. Gul Sahiba with appellant Bakht Jehan and Sultan Zeb and helped in recovery of Mst. Gul Sahiba.
P.W.6 Aman On the day of incident he saw Mst. Gul Sahiba in company of Bakht Jehan and Sultan Zeb and helped in recovery of Mst. Gul Sahiba.
P .W.7 Gulanzeb He alongwith Gul Sher and others had gone to village Shergarh in search of Mst. Gul Sahiba.
P W 8 Amir Dost Khan Witness of the marriage of Mst. Gul Sahiba with Gulshan.
P.W.9 Hakim Khan Brother-in-law of Bakht Jehan, appellant. He found appellant Bakht Jehan and the girl in his house in August, 1989.
P.W.10 Gulshan Husband of Mst. Gul Sahiba.
P.W.11 Khalid Witness regarding marriage of Mst. Gul Sahiba with Gulshan.
P .W.12 Abdul Wadood Police witness. In his presence Mst. Gul Sahiba was produced by Gul Muhammad. He was given swa bs of Mst. Gul Sahiba by Woman Medical Officer and handed over the same to the Investigating Officer.
P.W.13 Mian Gul Mst. Gul Sahiba was sold to him for Rs.26,500 by the appellant.
P .W.14 Dr. Sari Ram He examined appellant Bakht Jehan.
P W 15 Rahman Nazir Khan. S.H.O.
Investigating Officer.
P W 15 Lady Dr Saeeda Amin She examined Mst. Gul Sahiba.
P W 16 Syed Ghafoor Shah. M.I.C.
He recorded section 164, Cr.P.C. Statement of Mst. Gul Sahiba.
P.W.17 Jehanzeb Maternal-uncle of appellant Bakht Jehan. For a night the appellant alongwith a lady lived in his house.
P .W.18 Sher Hussain, A.S.I.
Partly investigated the case.
P.W.19 Gulshed. I.H.C.
Investigated the case partly.
P. W 20 Muhammad Amin Khan. Inspector. C.I.A.
Investigating Officer.
5. In his statement recorded under section 342, Cr.P.C. Appellant Bakht Jehan denied the allegation and pleaded innocence. He neither examined himself on oath nor produced any witness in defence. However, on 8-6-1991 the learned Sessions Judge convicted appellant Bakht Jehan and Mst. Gul Sahiba for the offence as mentioned hereinabove in the introductory paragraph. But Sultan Zeb and Mst. Kharboza were acquitted. Appellant Bakht Jehan has challenged his conviction and sentence before this Court in this appeal, but Mst. Gul Sahiba even on inquiry from this Court declined to file appeal.
6. Mr. Muhammad Waris Khan, Advocate appeared for the appellant and Mr. Shahabud Din Burq, Law Officer, N.W.F.P. Appeared for the State.
7. At the very outset the learned counsel for the appellant contended that evidence produced by the prosecution does not bring home the charge under sections 13 and 16 of the Ordinance against the appellant. To support his contention the learned counsel took us through the evidence of P.W.1 Gul Hamad, P.W.5 Lal Sher, P.W.6 Aman, P.W.7 Gulanzeb, P.W.13 Mian Gul and P.W.19 Gulshed, I.H.C.
8. The learned counsel for the appellant raised the following grounds:--
(i) P.W. Gul Hamad is not an eye-witness.
(ii) Names of P.Ws. Lal Sher and Aman do not appear in the complaint.
(iii) There are material contradictions in the evidence of witnesses Lal Sher, Aman and Gulanzeb and Mian Gul.
9. The learned counsel appearing for the State vehemently controverted the contentions raised by the learned counsel for the appellant and submitted that besides witnesses Lal Sher, Aman and Gulanzeb witnesses Hakim Khan and Jehanzeb have supported the prosecution. Hence the charge against the appellant stands proved beyond reasonable doubt. Thus, his conviction and sentence be maintained.
10. No doubt the names of P.Ws. Lal Sher and Aman do not appear in the complaint filed by Gul Hamad, who has stated in cross-examination that Lal Sher and Aman went with him to the police station and the said P.Ws. Helped him during the investigation of the case for recovery of the abductee. The omission of the names of the two witnesses,who were examined on the same day of F.I.R. In no way, effects their version, particularly when witnesses Hakim Khan and Jehanzeb who are nearly related to the appellant had also seen Mst. Gul Sahiba with him. Their evidence, indeed, gets full corroboration. A futile attempt was made by the learned counsel for the appellant that there was veil on the face of Mst. Gul Sahiba, hence Lai Sher and Aman could have not identified her. The argument is unconvincing. She was known to them previously, hence mere a veil on her head would not put obstacle on her identification.
11. Regarding the search and mode of production of Mst. Gul Sahiba, the learned counsel for the appellant drew our attention to the evidence of P.Ws. Lal Sher, Aman, Gulanzeb and Gulshed. The evidence of witnesses Lal Sher, Aman and Gulanzeb is unanimous. P.W. Lal Sher has said:-- "We started search of Mst. Gul Sahiba and in this connection I Gul Sher, Gulanzeb, Aman went to village Shergarh to the house of Jehanzeb wherefrom he accompanied us to the nearby Hotel. We inquired of him about the lady accused but he refused to know anything about her whereabouts.
We stayed in the said Hotel for the night. In the morning we again contacted Jehanzeb and requested him to help us in the matter and he accepted our request. He told us to give him Rs.8,000 and thereafter he will let us know her whereabouts. We were in possession of Rs.2,700.
However, the owner of the Hotel promised that he will make payment in case the lady is brought.
Jehanzeb went after the lady accused in the company of Gulanzeb in a vehicle and reached Badraga. We stayed in Sher-Garh. Gulanzeb contacted the owner of the house wherefrom Mst. Gul Sahiba was traced. However, they again tried to make her disappear. We rang up to the police station wherefrom the Investigating Officer contacted us but he told us that being the T.T. He is not in a position to go there.
However, Jehanzeb was summoned and detained and during course of interrogation he told that the lady accused had remained for one night whereafter, she went to the house of the sister of Jehanzeb namely Saifoor Baha. Saifoor Baha was also summoned by the I.O. And she disclosed that the lady accused has been sold to one Mian Gul alias Meva Gul of Badraga."
Witness Aman has said:-- "We were searching for the lady accused and in this connection I, Gulanzeb, Gul Sher and Lai Sher went to Shergarh and went to the house of Jehanzeb who is the maternal-uncle of Bakht Jehan accused. In the first instance he refused. However, later on due to our repeated requests he admitted her arrival. He asked us for Rs.8,000 so that the lady accused be handed over to us. We are not in possession of the said amount, however, we offered one Sardar owner of the Hotel as a surety with the condition that the lady accused is to be handed over to him and in return he will receive Rs.8,000 from the said Hotelier. A vehicle was arranged in which Gulanzeb, Jehanzeb and a minor girl were boarded and went towards village Badraga whereas we stayed at the said Hotel and were waiting for them. At the first instance Gulanzeb saw the lady accused. However, Jehanzeb was reluctant and hesitating in handing over the lady accused to Gulanzeb for the reasons best known to him. We were informed about the aforesaid situation and hence contacted the C.I.A. Police in this connection who arrived at the Hotel, the police took into custody Jehanzeb and interrogated him wherein Jehanzeb disclosed the fact that the lady accused had been sold by the sister of Jehanzeb accused namely Saifoor Baha. He also admitted that she remained in the house of Jehanzeb as well as Saifoor Baha and both of them made arrangements for her selling to one Mian Gul resident of Badraga."
Witness Gulanzeb has said:-- "I alongwith Gul Sher, Aman and Lal Sher went to Shergarh in search of the abductee. As it was told by Gul Hamad that the lady accused was present there in the house of Jehanzeb. We stayed with the Hotel of Sardar and directed him to summon Jehanzeb. We asked from Jehanzeb about the whereabouts of lady accused. At the first instance he denied. However, later on at our repeated requests he admitted the whereabouts of the lady accused with the condition that he should be paid Rs.8,000 because the same were incurred by him. We were not in possession of the complete, amount. However, we offered the owner of the Hotel as Surety for him with the condition that the lady accused is to be handed over to the owner of the Hotel and he will pay the required amount to him (Jehanzeb). I, Sardar and Jehanzeb alongwith daughter of Jehanzeb went in a vehicle to Badraga and reached the house where Gul Sahiba was present. On our information 3/4 ladies including Gul Sahiba came out of the home. I recognized Gul Sahiba. On seeing me Jehanzeb and the ladies pushed her, inside the house. Jehanzeb came out of the house and told me that Gul Sahiba was not present in the said house. I told that I had myself seen Mst. Gul Sahiba but he had intentionally concealed her. We came back to Shergarh and contacted C.I.A. Police Swat on telephone secretly so that Jehanzeb is to be arrested and interrogated by the police. On the arrival of the said police we fixed the responsibility on Jehanzeb that he was to be taken into custody and accordingly he was interrogated and he revealed that Gul Sahiba had remained for one night in his house and for some time in the house of his sister Saifoor Baha. He admitted before the police that Saifoor Baha and Bakht Jehan had sold Gul Sahiba to Mian Gul at Badraga."
12. There is nothing in their evidence which may reflect on the factum of the search of Mst. Gul Sahiba.
13. Regarding her recovery P.W. Lal Sher has said that Mian Gul was tenant of D.I: G. Peshawar Range. The abductee was recovered from the house of D.I: G. Masood Shah. Gul Sher has said that Gul Muhammad produced the abductee to him. There is consistency regarding recovery of Mst.
Gul Sahiba from the Tribal Area. There is no material contradiction which may belie the evidence of witnesses regarding search and recovery of Mst. Gul Sahiba. Such minor contradictions pointed out by the learned counsel for the appellant in the evidence of the above-said witnesses in our view would not be of any signifcance. It was then argued by the learned counsel for the appellant that important persons, Sardar, owner of the Hotel, who had stood surety for paying money and Gul Muhammad, who had handed over Mst. Gul Sahiba to the police had not been examineu before the Court. In our view there is positive evidence of witnesses LAI Seer, Aman, Gulanzeb and Gulshed in respect of search and recovery of Mst. Gul Sahiba. Their non-production would not effect the same. Even otherwise, the prosecution is at liberty to produce any evidence which they desire. If any witness is left he can be P-- examined by defence. The objection regarding non-examining of these two witnesses is, therefore, of no importance. An objection was raised that Mst. Saifoor Baha, sister of Jehanzeb was also a party in sale of Mst. Gul Sahiba, but she has not been made a party in the proceedings. In this respect evidence of witness Aman was pointed out. We fail to understand as to how her not being made a party in the case would benefit the case of the appellant against whom there is positive evidence.
14. A last attempt was made to suggest that acquitted accused Sultan Zeb and Mst. Kharboza were also involved in enticement and sale of Mst. Gul Sahiba, but they have been acquitted, hence benefit of doubt be also extended in favour of the appellant. It may be observed that the evidence of P.W. Hakim Khan, P.W. Jehanzeb and P.W: Mian Gul have further implicated the appellant in enticing away and selling of Mst. Gul Sahiba. Hence his case stands distinguished from those acquitted accused. Besides, we have gone through the judgment of the learned trial Court, who has fully appreciated the evidence on the record. We do not find any reason to take a different view than taken by 13 him. The charge has been brought home against the appellant beyond reasonable doubt. Hence we see no reason to interfere with the terse judgment passed by the learned Sessions Judge, Swat. We are, therefore, inclined to maintain the conviction and sentence passed by him. The appeal is dismissed accordingly.
TANZIL-UR-RAHMAN, CJ.--- On conclusion of the hearing, the appeal was dismissed by our short order, dated 12-12-1991, which is reproduced below:-- "Arguments heard. For reasons to be recorded later, the appeal is dismissed."
2. I have gone through the reasons for the above short order, written by my learned brother Mir Hazar Khan Khoso, J. I am in full agreement with the same. However, I would like to say few words on the point of the effect of contracting marriage with a married woman under Islamic Law.
3. It has been proved by evidence that Mst. Gul Sahiba was already married to Gulshan. P.W.1 Gul Hamad, complainant and father-in-law of Mst. Gul Sahiba, P.W.3 Syed Rahim, Nikah Khawan, P.W.4 Mst. Wazira, the mother of Mst. Gul Sahiba, P.W.8 Amir Dost Khan, witness of the marriage, P.W.10 Gulshan, the husband of Mst. Gul Sahiba and P.W.11 Khalid, another witness of the said marriage of Mst. Gul Sahiba with Gulshan, besides Mst. Gul Sahiba's her own statement under section 164, Cr.P.C. All go to prove the said marriage conclusively. It has also come on record and proved by evidence that Mst. Gul Sahiba was sold by the appellant or given in marriage for Rs.26,500 to Mian Gul, who contracted his marriage with Mst. Gul Sahiba, in lieu of dower, without knowing her that she was already married. In fact, he was assured by the appellant that Mst. Gul Sahiba was her sister, unmarried and virgin. But, soon after coming to know of the previous marriage, he produced her before the police. The appellant has, therefore, been rightly convicted under sections 13 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced by the learned Sessions Judge, Swat, as referred to in para. 1 of the judgment by my learned brother.
4. As regards the effect of another marriage, during the subsistence of the previous marriage, it may be stated that contracting marriage with a female married to another person has been prohibited in the Holy Qur'an, where it is laid down:-- (Also (prohibited) are women already married except those woman your right hands possess). (Al- Qur'an. Surer Al-Nisa, (The Women), iv:24)
5. Imam Razi has written in his commentary` on the Holy Qur'an that the word (` "l:,"r..J h ',) is governed by the words, (I sdub xi s) in the same manner as the word (`1t~...1 ') is governed by (",.y. ).
In other words, contracting marriage with another's wife is, in the opinion of Imam Razi, as unlawful as contracting marriage with one's own mother.
6. There is no difference of opinion among the a'immah Arba'ah ( "il AZl ) (the founders of four Schools of Sunni Law) on the point that the female who is to be contracted into marriage with a male must be free from any other contract of marriage, i.e. She must not be under the marriage contract of someone else. It is essential for a female to be a fit subject (mahal) at the time of marriage contract. If she is married to some one else, she cannot D be a fit person for marriage with another. Moreover, when she is under marital obligations to one husband, such rights cannot be created in another's favour against her. It is, thus, not legally possible for both the husbands to exercise similar rights over one female at the same time. It is so stated by Ibn al-Abidin in Radd al Muhtar Vo1.II Chapter on `Iddat, p.624: (A woman married to another is not a fit subject (of marriage) and it is not possible to exist two proprietorships in one point of time in respect of one thing. Thus the contract (of marriage) did not become effective, the proprietorship being fasid).
Consequently, marrying another's wife is unlawful, as also laid down in the I E following books of Fiqh:-- (It is not lawful for a man to marry another's wife) (Fatawa ---Alamgiriyyah: Vol.Ll, p.7).
(The marriage with another's wife is unlawful). (Al-Ahkam al- Shari'iyyah fil Ahwal al-Shakhsiyyah.
Egypt. Section 27).
7. There is, however, one exception: if the marriage is contracted without knowledge of the fact that the female is the wife of another person and the male cohabits with her, in such circumstance, for the reason of cohabitation and not on the basis of marriage itself, the connubial relationship shall be F governed by the rules of `Irregular Marriage' which, in fact, are the rules governing cohabitation-in-doubt. All Muslim jurists, on this account are unanimous in their view that the parties, as soon as they come to know of the illegality, must separate. If they do not separate of themselves, the Court shall IF get them separated.
8. In the instant case, Gul Mian, the second husband, no sooner he came to know of the fact that Mst. Gul Sahiba is the legally-wedded wife of Gulshan, he not only separated but produced her before the police. In such circumstance, the second husband Mian Gul was not prosecuted and rightly so, but Mst. Gul Sahiba knew it fully well that she was legally wedded wife of Gulshan at the time of contracting second marriage with Gul Mian and as such committed an offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was, therefore, rightly convicted and sentenced in accordance with law by the learned trial Court.