' Mst. Maqsoodan Bibi and Sardar Muhammad alias Dari have filed this appeal challenging the judgment, dated 25-5-1994 passed by the learned Additional Sessions Judge, Gujranwala, in Hudood Case No,76 of 1987, whereby the two appellants have been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and both of them sentenced to R.I.
For five years, thirty stripes and fine of Rs,5,000 each and in default to further undergo S.I. For one year. I have heard the arguments of Mr. Chaudhry Liaqat Ali Sindhu, learned counsel for the two appellants, and Mr. Mian Muhammad Jahangir, learned counsel representing the State. With the assistance of the learned counsel, I have gone through the record.
2. In this case, F.I.R. No,380 was registered on 19-5-1986 at Police Station Saddar, Gujranwala.
Complainant in this case is P.W.6 Muhammad Sharif, at whose instance the said F.I.R. Was recorded. According to the complaint, the complainant was married to appellant Maqsoodan Bibi vide Nikahnama dated 27-3-1986 and a sum of Rs,35,000 had been taken from the complainant by the mother of Mst. Maqsoodan Bibi and three other persons in consideration of the said Nikah, but one of the persons who had received the said amount, namely, Sadiq son of Muhammad Din, deceitfully got Mst. Maqsoodan Bibi married to appellant Sardar for consideration of Rs,42,000.
According to the complainant, all the said persons knew that Mst. Maqsoodan Bibi was already married to the complainant, but they contracted an illicit second marriage of Mst. Maqsoodan Bibi with Sardar. According to the complainant, the second Nikahnama was forged in order to deprive the complainant from Rs,35,000 which he had paid.
3. After investigation was completed, challan against five accused including the two appellants was put up. The three other accused were Ashiq Hussain, Hidayat and Muhammad Sadiq. During the trial, 14 witnesses were examined by the prosecution. Statements of the five accused were recorded under section 342, Cr.P.C. The appellants examined D.W.1 Hafiz Maqsood Ahmad, Nikahkhawan of the Nikah dated 4-4-1986. By the impugned judgment, the three co-accused were acquitted, but two appellants have been convicted and sentenced as observed.
4. P.W.1 Muhammad Saeed-ur-Rehman is Nikahkhawan who had performed the Nikah ceremony on 27-3-1986 between the complainant and Mst. Maqsoodan Bibi. In respect of the said Nikahnama there were three witnesses, namely, the Vakeel of the bride, namely, P.W.8 Muhammad Ismail and the two witnesses of appointment of the Vakeel by the bride, namely P.W. Said and Muhammad Bashir (given up). Mst. Maqsoodan Bibi denied that any Nikah had taken place between her and the complainant. She denied the. Nikahnama, dated 27-3-1986. Witnesses relating to the abduction, namely, P.W.3 Muhammad Boota and P.W.4 Mst. Naziran Bibi did not support the prosecution. P.W.5 Said, witness of the appointment of the Vakeel of the bride in respect of the Nikahnama dated 27-3-1986 also did not support the prosecution.
5. P.W.8 Muhammad Ismail is the Vakeel of bride Mst. Maqsoodan Bibi in the Nikahnama dated 27- 3-1986 (Exh.P.A.). However, he stated in his evidence as follows:-- "I do not know Mst. Maqsoodan Bibi previously. Neither father nor mother of Mst. Maqsoodan Bibi was present at the time of Nikah.
' I do not know the father's name of Maqsoodan Bibi. I do not know the residence of Mst.
Maqsoodan Bibi."
6. On the evidence of Muhammad Ismail it could not be held that Nikah of Mst. Maqsoodan Bibi had been solemnized with the complainant. The above part of the evidence of Muhammad Ismail shows his complete ignorance about the bride. It cannot be believed that he could have been appointed Vakeel by the bride.
7. Evidence of P.W.1 Muhammad Saeed-ui-Rehman, Nikahkhawan in respect of the Nikah dated 27- 3-1986 also does not establish that Nikah of Mst. Maqsoodan Bibi and the complainant had been solemnized. He did not know the bride Vakeel of the bride did not know the bride. He was not related to the bride. Parents of the bride were not present. The Nikah has been denied by Mst.
Maqsoodan Bibi. According to Mst. Maqsoodan Bibi, she was married on 4-4-1986 with co- appellant Sardar alias Dari.
8. However, the trial Court came to the conclusion that the factum of Nikah dated 27-3-1986 had been established and the reasoning of the trial Court is given in paras. 21 and 22 of the judgment which are reproduced here:- "Out of the various witnesses produced P.W.4, P.W.5 and P.W.3 have not supported the occurrence and have been declared hostile and cross-examined by the prosecution. These witnesses were mostly concerned with the first and second part of the charge. Moreover, a critical appraisal of the case put forward by the parties is that one Maqsoodan Bibi was married to the complainant where after she was taken by certain accused persons and got her married subsequently with co- accused Sardar. According to Nikahnama Exh.P.A. And Exh.P.F. In support of the two Nikah their Nikahkhawan have appeared as P.W.1 and D.W.1 besides P.W.8 and P.W.9. In such situation both the parties were hinted orally to resolve their dispute through Family Court because of the existence of two Nikahnamas in favour of the complainant and in favour of the accused but they did not bother to take up this matter for getting their Nikahnamas declared as valid or void as the case may be.
According to the record as it exists the Nikah in favor of complainant was recorded on 27-3-1986 whereas Nikah of Maqsoodan Bibi was solemnized to 4-4-1986 with Sardar accused. In favor of complainant P.W.1 Muhammad Saeed-ur-Rehman who is Nikahkhawan appeared alongwith Muhammad Ismail P.W.8 and Abbas Ahmad P.W.9 who is Nikah Registrar.
' In such situation one point is established that Maqsoodan Bibi contracted marriage firstly with the complainant on 27-3-1986 vide Exh.P.A. Where after she contracted marriage with Sardar accused vide Exh.D.F. However, she while making statement under section 342, Cr.P.C. Denied the existence of Nikah with the complainant whereas she admitted the Nikah with Sardar co-accused. So far as the proof of Nikah by the complainant with her is concerned the prosecution in this behalf wanted to produce some additional evidence in the shape of complaint under section 503/506/452 and her statement before the Magistrate but those documents were not taken in the evidence at late stage but a judicial notice is being taken on them. According to said documents which are available on the file in that complaint she stated that she wanted to contract marriage with Sharif and respondent in that case was not prepared to get that marriage solemnized. In that statement she has stated that she wanted to marriage Sharif with her free-will and she accordingly contracted the marriage on 27-3-1986, therefore, her this statement run counter to the statement made by her under section 342, Cr.P.C. After making the above-referred statement she contracted marriage to the complainant, therefore, in view of the existence of this Nikah no doubt is left that she was married to complainant Muhammad Sharif after that she contracted marriage with Sardar accused which means that she knowingly contracted the said marriage when she already married with Sharif complainant, therefore, it stands established that she contracted second marriage in violations of law as laid down in section 494, P.P.C. But unfortunately no charge under section 494, P.P.C. Was framed by my learned predecessor who took up the case for trial in the beginning. However, from this one thing is stands established that accused Maqsoodan Bibi and Sardar committed Zina with each other because she was already married to Sharif and her marriage with Sardar was void being marriage during the lifetime of her previous husband.
Therefore, without adverting to the evidence on record it stands established that they have been committing Zina with each other and are guilty under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979."
9. I cannot agree with the reasoning of the trial Court. Where application for additional evidence had been rejected and the evidence had not been brought on record, the trial Court could not take judicial notice of such document. If any piece of evidence is to be used against an accused, same must be brought on record and an opportunity given to the appellant to cross-examine the concerned witnesses in respect of the said document. It is surprising that the learned trial Court took judicial notice of the aforesaid document which was not accepted.And brought on record and, in fact, the application for additional evidence in that regard had been rejected, against which no appeal or revision has been filed. In effect, the trial Court has convicted the appellants on the basis of a document, B which had not been brought on record by taking judicial notice wrongly.
10. The prosecution had failed to establish that Mst. Maqsoodan Bibi was already married to complainant Muhammad Sharif on 27-3-1986 and, therefore, the Nikah dated 4-4-1986 between the two appellants was not void.
11. As a result, this appeal is allowed, the judgment, dated 25-5-1984 of the learned Additional Sessions Judge, Gujranwala is set aside and the two appellants are acquitted of the charge. It is informed that the two appellants are on bail. Their bail bonds are discharged.