' This appeal is directed against the judgment, dated 25-6-1995, by Additional Sessions Judge, Sialkot, whereby the learned Additional Sessions Judge had convicted the appellant under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to undergo R.I. For three years plus to pay a fine of Rs,10,000. In default whereof to further undergo R.I.
For six months. He was also awarded thirty stripes.
' Mst. Khurshid Begum and Mst. Shamim Akhtar tried along with the appellant were acquitted vide the same judgment.
2. F.I.R. Exh.P.A./1 was registered at Police Station Kotli Said Amir, on 19-5-1992 at 3-00 p.m by Muhammad Yousaf, L.H.C. P.W.8, on receipt of application Exh.P A. Submitted by Muhammad Riaz, P.W.1. Before Muhammad Azam A.S.-I. P.W.7 at Chowk Ramu Chak on the same day at 1-30 p.m ' According to F.I.R the complainant had gone to village Chitti Sheikhan along with his wife and children, 1-1/2 months prior to 19-5-1992, leaving his daughter Mst. Shazia aged 15/16 years in the house. When he came back in the evening, he found Mst. Shazia missing. During search Ghulam Hussain and Mukhtar P.Ws., told him that they had seen Mst. Shazia boarding a bus going to Sialkot at Jhang More in the company of Mst. Khurshid Begum, Mst. Shamim Akhtar, Sanaullah (appellant) and Zafar Butt. He went to Muhammad Bashir husband of Mst. Khurshid Begum and father of Sana Ullah and inquired about his daughter. Muhammad Bashir told him that she might have gone with Sana Ullah etc. To purchase some articles and they will come back. Muhammad Bashir continued promising return of Mst. Shazia till 19-51992, when he finally refused to return NIst. Shazia. The complainant alleged that Mst. Shazia had been abducted in ord, r to marry her with Sana Ullah Challan was submitted to Court after completion of necessary investigation.
3. Statements of nine P. Ws. Were recorded at the trial.
' Muhammad Riaz, P.W.1, Ghulam Hassan, P.W.2, and Mst. Shazia P.W.9 supported the prosecution case.
' Mst. Shazia stated that her parents along with her brother and sister had gone to village Chitti Sheikhan leaving her alone in the. House. Mst. Khurshid and Mst. Shamim Akhtar came to their house and requested her to accompany them for purchasing clothes and that she accompanied them on their insistence. When they reached Jhang More, Sana Ullah and Zafar Butt joined them.
They all boarded the bus for Sialkot. According to her Ghulam Hassan and Mukhtar had seen her before boarding the bus with the accused. He stated that after roaming in the Bazar for some time, the other accused went away and Sana. Ullah took her to a house in village Det where he committed Zina-bil-Jabr with her under coercion next day Zafar joined them. They took her to the house of Saleem where they kept her for 10/12 days. Sana Ullah committed Zina-bil-Jabr with her during those days also. She was then taken to the chamber of Ch. Muhammad Ali, Advocate in Silakot Katchary Muhammad Ali asked Zafar and Sana Ullah to bring some forms. Muhammad All asked her to sign and thumb-mark the forms. When she refused to do so he told the accused to kill her, whereupon she thumb-marked and signed the papers. She stated that thereafter Sana Ullah had been taking her to different places for 10/12 days. One day Sana Ullah was taking her to some other place, the police apprehended them. The police recorded her statement and took her to the police station, whereafter she was produced before the Magistrate where also she made statement. During cross-examination she stated that she had filed a suit for jactitation of marriage against Sana Ullah. She expressed ignorance that the Judge, Family Court had declared the marriage irregular as witnesses of the Nikah were not produced. She expressed ignorance about Sana Ullah having filed a writ petition in the High Court. She admitted that she had made a statement before the Judge, Family Court that she had privately studied upto 10th class. She stated that she was 19/20 years old. She disclosed that she had contracted marriage with one Riaz during the pendency of the suit for jactitation of marriage. She denied that she had appeared before a Magistrate in the complaint filed by her against her father and had made statement. She expressed ignorance about Sana Ullah having filed a suit for restitution of conjugal rights, before she had filed a suit for jactitation of marriage. She denied that she had appeared before the Judge in the suit for restitution of conjugal rights and made statement that she wanted to live with Sana Ullah her husband and the suit was decreed. She denied that her Nikah had been performed with Sana Ullah and that Muhammad Bashir, Muhammad Sarwar, Muhammad Bashir son of Nawab Din, Shaukat Ali, Munawar Hussain, Sultan and Mehboob had attested the Nikahnama. While admitting that she had affixed signature and thumb-marked the Nikahnama, she explained that it was done under coercion. She admitted that photos Exhs.D.1, D.2., D.3, D.4, D.5 and D.6 were taken in the house of Sana Ullah accused. She admitted that in photo Exh.D.4 younger- brother of Sana Ullah is also seen. While expressing ignorance about Sana Ullah having obtained decree for conjugal rights she denied that she had appointed Rana Pir Muhammad, as Advocate to represent her in that suit. She denied that she had contracted marriage- with Sana Ullah with free consent and that she had made a false statement under pressure of her father.
' The statements of the remaining witnesses are more or less of a formal nature.
4. Appellant during statement under section 342, Cr.P.C. Denied the prosecution case, pleaded innocence and stated as follows in answer to the question why this case against you and why the P.Ws. Deposed against you?
"I had a tractor-trolley and father of Mst. Shazia used to get his land ploughed from me and I was on visiting terms in their house. Mst. Shazia Riaz got friendly with me and ultimately with consent of her parents I was assured, that she will' be married to me. I used to reside in their house and the complainant continued usurping my income, but ultimately under the pressure and coercion of the Bradri he refused to give his daughter in marriage to me. Mst. Shazia Riaz was adamant to marry with me, so she followed me in District Courts, Sialkot. She filed a complaint against her father in the Court of Ilaqa Magistrate and made statement showing her willingness to marry with me.
Thereafter she solemnized Nikah with in the presence of the witnesses and that Nikahnama was duly registered in accordance with law. I tender copy of my Nikahnama. I paid her the amount of dower of Rs,200. She continued to live with me as my wife in my house. She got her photographs with me at my house. She remained amicably with me as my wife and performed marital obligation. She also attended many functions as my wife. Ultimately the complainant Riaz assured me that Shazia Riaz be sent to his house and she would come back after his consent, so that proper Rukhsati may be made by him. On this assurance I allowed Mst. Shazia to go to her parents and when she went there he instead of returning my wife pressurized her and got this false case registered against me. I filed suit for restitution of conjugal against Shazia Riaz in which she appeared in the Judge, Family Court and made the statement and also submitted written statement and my suit was decreed. Subsequently she filed a suit for jactitation of marriage in which the learned Judge, Family Court admitted the marriage with the free consent of Mst. Shazia and held that it was irregular marriage. I have challenged the judgment of the Family Court in a writ petition in Honorable High Court and Mst. Shazia made appearance before the Honorable High Court with her counsel. My prayer in the writ petition is that my marriage with Mst. Shazia is a valid marriage. During the pendency of suit for jactitation of marriage Mst. Shazia has contracted illegally second marriage with Riaz. Mst. Shazia Riaz appointed Rana Pir Muhammad, Advocate as her counsel in the suit for restitution of conjugal rights and the said Advocate appeared on her behalf in that suit."
' He examined in defence Mehboob Ahmad and Muhammad Bashir who stated that Nikah of Mst.
Shazia was performed with Sana Ullah in the chamber of Mr. Muhammad Ali, Advocate in their presence and they had signed as witnesses.
' He also tendered in evidence certified copy of affidavit of Mst. Shazia Exh.D.B., and affidavit dated 1-4-1992, Exh.D.C. Certified copy of the private complaint filed by Mst. Shazia Riaz Exh.D.D., certified copy of statement of Mst. Shazia Riaz before Magistrate Exh.D.E., certified copy of plaint in the suit for restitution of conjugal rights alongwith written statement Exh.D.F., certified copy of the statement of Shazia Riaz in the Family Court Exh.D.G., certified copy of the statement of Rana Pir Muhammad, Advocate, before the Judge, Family Court Exh.D.H., certified copy of decree passed by Judge, Family Court between the parties Exh.D.I., certified copy of the interim order passed by the Honourable High Court in Writ Petition Exh.D.J.
5. Learned counsel for the appellant after taking me through the evidence contended that there is sufficient evidence on record to believe that Mst. Shazia had entered into marriage with the appellant of her own will and free consent.
' Learned counsel referred to the following observations/findings, in para. 8 of the judgment dated 31-10-1994 of Senior Civil Judge/Family Judge, Sialkot in the suit for jactitation of marriage filed by Mst. Shazia against the appellant:-- "Plaintiff had attained puberty at the time of Nikah. Her statement before Illaqa Magistrate and before Judge, Family Court and her affidavits are the proof that she entered into the contract of marriage with the defendant with her free consent. According to section 254 of Mulla's Principles of Mahomendan Law, a marriage contract without witnesses as required by section 254 is irregular but not void. Question arises what is the effect of the irregular marriage. This question has been dealt with under sections 264 and 265 of Mulla's Mohammedan Law. According to section 264 an irregular marriage is not valid but not unlawful itself. According to section 267 of this law, an irregular marriage may be terminated by either party either before or after consummation by words showing an intention to separate. Thus, plaintiff was in a position to terminate the marriage at any stage subsequent to Nikah. Plaintiff has stated as P.W.1 that she was never the wife of the defendant and that she has contracted her marriage with Riaz Hussain and has given birth to a daughter as well. This statement coupled with act of second marriage is sufficient for purposes of said termination of marriage with the defendant. The result is that it is hereby declared that the marriage with the defendant was terminated the moment plaintiff uttered the words that she was no more wife of the defendant and contracted a second marriage."
' To contend that even the learned Judge, Family Court had come to the conclusion that marriage had been performed between Mst. Shazia and Sanaullah with the free consent of Shazia and it had ended on the exercise of right of termination of irregular marriage by Shazia.
"Irregular" has been defined as follows in Chambers, 20th Century Dictionary: "Irregular: adj. Not regular; not conforming to rule or to the ordinary rules; disorderly; uneven; unsymmetrical; variable (of troops) not trained under authority of a Government; (of a marriage) not celebrated by a minister after proclamation of banns or of intention to marry, -, an irregular soldier.--n"
' It has been defined as follows in the Concise Oxford Dictionary, The New Edition for the 1990s:-- "Irregular, adj.
1. Not regular; unsymmetrical, uneven, varying in form.
2. (of a surface) uneven.
3. Contrary to a rule, moral principle or custom; abnormal.
4. Uneven in duration, order etc.
5. (of troops) not belonging to the regular army.
6. Gram (of a verb, noun, etc.) not inflected according to the usual rules.
7. Disorderly.
8. (of a flower) having unequal petals etc. - n(in pl) irregular troops."
' The definition of marriage does not say that an irregular marriage is not a marriage or that irregular marriage means a void marriage. Irregular itself connotes that some regularities laid down has not been performed but the failure to perform some regularities cannot be taken to mean that marriage had not been entered into at all and was void ab initio. Mere irregularities in anything cannot be taken to mean illegalities. Irregularity is always, curable while illegality stands on a different footing.
6. The marriage which the appellant claimed with Shazia was never declared as void by the Judge, Family Court. He had only declared the same to be irregular and had decreed that as the marriage between the parties was irregular Mst. Shazia could terminated that and the marriage stood terminated from the day she filed the suit procuring that she was no more wife of Sana Ullah.
7. The expression Wilfully used in section 4 of the said Ordinance is also a Meaningful expression. An act done wilfully has to be backed with a determination, containing mens rea. Wilful commission of Zina cannot be alleged against a person who believes for good reasons that the woman with whom he is having sexual intercourse was his wife and he had entered into marriage with her lawfully.
8. The documents produced by the appellant in defence included, Nikahnama Exh.D.A., dated 15-4- 1992, affidavit Exh.D.B. Sworn by Mst. Shazia before Oath Commissioner on 26-4-1992, affidavit Exh.D.C., sworn by Mst. Shazia on 1-4-1992. In Exh.D.B. She stated that she had entered into Nikah with Sana Ullah of her own accord, while in Exh.D.C. She stated that she wants to marry Sana Ullah of her free-will and that she will try to a pease her parents to agree to the proposed marriage.
Exh.D.D. Is copy of the complaint filed by her in the Court of Magistrate against Riaz etc. In which she complained that as she had married Sana Ullah the accused (named in complaint) wanted to murder her. Exh.D.E. Is the statement which she made in the complaint wherein, also, she stated that she had married Sana Ullah and was living with him freely as wife. Exh.D.F. Is the written statement filed on her behalf in the suit for conjugal rights filed against her before the Judge, Family Court by Sana Ullah. In that she admitted that she had married Sana Ullah of her free consent and is prepared to live with him and performed conjugal rights. Annexure "S" is copy ot the suit for conjugal rights filed by Sana Ullah. Exh.D.G. Is the copy of the decree-sheet issued in the suit for conjugal rights filed by the appellant. Exh.D.H. Is the statement of Rana Pir Muhammad, Advocate, whom Mst. Shazia had engaged as a counsel to appear in the suit for conjugal rights filed by the appellant against Mst. Shazia. The photographs Exhs.D.1, D.2, D.3, D.5 and D.6 are the snaps of the appellants with Mst. Shazia. The posture of the photographs clearly indicate that they were happily placed.
9. The contents of the abovenoted documents give a lot of support to the plea advanced by the appellant that at one time, Mst. Shazia had entered into C marriage with him of her free-will and consent.
' In the given situation of this case the defence plea of valid marriage is sous from the record which was neither frivolous nor absolutely baseless. Placing the plea advanced by the appellant in juxtaposition with the case of the prow Ltitton, the allegation levelled by the prosecution of commission of Zina becomes highly doubtful and unsustainable. The prosecution had failed to establish that the appellant had willfully committed Zina. (word used in section 4 of the said Ordinance) The benefit of this has to go to the appellant.
' For coming to the conclusion, I have drawn strength and placed reliance on the judgments reported at page 744 of PLD 1989 SC (Allah Ditta and others v. The State) and judgment reported at page 95 of PLD 1994 SC (Muhammad Azam v. Muhammad Iqbal and others).
10. For all the reasons noted above the appeal is allowed and the appellant is acquitted. He is on bail. Sureties stands discharged.
11. In order to avoid any misgiving it is observed that acquittal granted on the basis of reasons does not mean that Mst. Shazia was the wife of the appellant even at this stage. For that the appellant will have to approach the proper forum which can decide the marital status.