' The appeal is directed against the judgment, dated 10-12-1995, by Additional Sessions Judge, Sahiwal, whereby the learned Additional Sessions Judge had convicted Hassan Muhammad appellant under sections 10(3) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and awarded sentences as follows:-- Under section 10(3) of the said Ordinance.Ten years' R. I. plus to suffer thirty stripes.
Under section 16 of the said OrdinanceFive years' R.I. plus to pay a fine of Rs.10,000 in default whereof to suffer R.I. for one month and to suffer thirty stripes.
' Abdul Rauf, Ghafoor, Ghulam Sarwar and Mst. Safia Bibi tried alongwith the appellant were acquitted vide the same judgment.
2. F.I.R. Exh.P.A. Was registered at the Police Station Harrappa, by Maqbool Ahmad, A.S.-I. P.W.5 on 3- 7-1992 on the statement of Mst. Husna Bibi P.W.1.
' According to F.I.R. Mst. Safia Bibi, came to the house of the complainant on 22-6-1992 at about 8/9 a.m. And took away complainant alongwith her to their land. Abdul Rauf and Ghafoor sons of Abdul Majeed were present there. They enticed her to sit in white coloured car standing there. They also boarded the car and went to the hotel of Sarwar Bhatti near Harrappa town. Sarwar Bhatti and Hassan Muhammad (appellant) were present" there. They also boarded the car whereafter they took her to Sahiwal Town where they obtained her thumb-impression on white papers. In the evening they took her to a village near Burewala Town. On the next day they took her to Shujabad where they booked a room in the hotel. Hassan, Sarwar Bhatti and Abdul Rauf stayed with her, each of them committed Zina with her. On third day Sarwar Bhatti and Ghafoor returned. Abdul Rauf and Hassan brought her to a hotel in Sahiwal Town on 3-7-1992. After lodging her in the hotel both of them went to the Bazar. Finding opportunity she slipped from there and reached village on a bus and told the whole occurrence to Ghulam Nabi her sister's husband. Ghulam Nabi took her to police station where she lodged F.I.R.
3. Muhammad Ramzan, A.S.-I. P.W.4, who had also investigated the case, recorded statements of the P.Ws. And got Mst. Husna medically examined on 6-7-1992. He arrested Abdul Rauf on 18-7- 1992. Hassan Muhammad and Ghafoor were arrested by him on 29-7-1992, on rejection of their petition for bail before arrest. He got all the three accused medically examined and after receipt of result about the swa bs from the office of the Chemical Examiner, he got the accused challaned through S.H.O.
4. Statements of six P.Ws. Were recorded at the trial.
' Mst. Husna Bibi complainant appeared as P.W.1. After repeating the facts given by her in the F.I.R., she stated that the accused had forged a Nikahnama, on the basis of her thumb-impressions which had been obtained fraudulently and that she filed a suit for jactitation of marriage which was decided against her by the learned Civil Judge but the case was decided in her favour by the District and Sessions Judge in appeal. During cross-examination she denied the suggestion that she had thumb-marked a genuine Nikahnama in favour of Hassan accused. She denied the suggestion that she had filed a complaint against her brother Yasin, Shah Rasool, Ghulam Rasool and Wazir Ali at Shujabad. She also denied the suggestion that she had sworn an affidavit and thumb-marked the same.
' Ghulam Nabi P.W.2 stated that he had seen Mst. Husna being carried. In a white coloured car by Ghafoor and Abdul Rauf but he could not stop them as the car went away speedily. He added that Mst. Husna returned after 8/10 days and told him the details of the occurrence. He denied the suggestion during cross-examination that he had made a false statement.
5. The Police Officer who had investigated the case and the doctor who had medically examined Mst. Husna were also examined at the trial. Positive report from the office of the Chemical Examiner was also tendered in evidence.
6. The appellant during statement under section 342, Cr.P.C. Denied the prosecution case and stated as follows in answer to the question "why this case against you and why the P.Ws. Have deposed against you"?
"On 22-6-1992 I and Mst. Husna Bibi entered into a legal and Sharee wedlock with our mutual consent. The parents of Mst. Husna Bibi, demanded her hand back and asked for divorce which I refused. Due to this reason the complainant party falsely involved me and my brothers-in-law in this case. Mst. Safia Bibi, co-accused is my real sister and Ghulam Sarwar Bhatti, co-accused is friend of Abdul Ghafoor. They were also involved in this case. They have been declared innocent by the police after the investigation."
' He produced in defence certified copy of complaint under section 365/506/34, P.P.C., titled Mst.
Husna Bibi v. Yasin etc. Exh.D.A., certified copy of order, dated 22-9-1992, Exh.D.B. Certified copy of Part Nikah, dated 22-6-1992, Exh.D.C., certified copy of plaint of suit for restitution of conjugal rights, titled Hassan Muhammad v. Mst. Husna Bibi Exh.D.D., certified copy of written statement filed by Mst.
Husna Bibi, Exh.D.E., certified copy of plaint in suit for jactitation of marriage, titled Mst. Husna Bibi v.
Hassan Muhammad, Exh.D.F., certified copy of written statement in suit for jactitation of marriage, Exh.D.G.; certified copy of statement of Maulvi Noor Muhammad, Nikah Khawan, in suit for jactitation of marriage, Exh.D.H.; certified copy of statement of Mst. Husna Bibi in suit for jactitation of marriage, Exh.D.J., certified copy of application on behalf of Hassan Muhammad for comparison of thumb- impression of Mst. Husna Bibi in suit for jactitation of marriage, Exh.D.K.; certified copy of written reply filed by Mst. Husna Bibi, Exh.D.L., certified copy of judgment, dated 26-3-1994 in suit for jactitation of marriage, titled Mst. Husna Bibi v. Hassan Muhammad, Exh.D.M., certified copy of decree sheet in suit for jactitation of marriage, Exh.D.N.; photo copy of the affidavit of Mst. Husna Bibi, dated 22-6-1992 mark "A" and closed his defence evidence.
' He declined to make statement on oath under section 340(2), Cr.P.C. And did not examine any witness in defence.
7. As against the prosecution case, that Mst. Husna had been enticed away and Zina had been committed with her by the appellant and the two acquitted accused, the case of the appellant, is, that he had entered into marriage with Mst. Husna through mutual consent and free will and that as Mst. Husna was regularly wedded wife, question of commission of Zina-bil-Jabr with her did not arise.
8. The appellant did not deny that Mst. Husna had filed a suit for jactitation of marriage and he had filed a suit for conjugal rights and that the suit filed by him was decreed while suit filed by Mst.
Husna was dismissed. He also did not deny that the appeal filed by Mst. Husna against the judgment of Judge, Family Court, was allowed by the District Judge vide judgment, dated 21-9- 1994. The suit filed by him stood dismissed while suit filed by Mst. Husna was decreed.
9. Learned counsel for the appellant contended that notwithstanding the fact that the suit filed by the appellant had been dismissed in appeal and the suit filed by Mst. Husna had been decreed, the fact remained that the marriage had taken place between the appellant and the complainant and as such the appellant cannot be held liable for having committed Zina-bil-Jabr even though the marriage was not accepted to be a valid marriage.
' Learned counsel argued that even if it was an irregular marriage the appellant cannot be held liable for commission of Zina because he was under a bona fide impression that he was husband of Mst. Husna.
10. Learned counsel while advancing arguments, failed to take note of the fact that the learned District Judge had not held the marriage to be irregular. In fact the learned Judge in para. 14 had come to the conclusion that "... The material on record indicates that this Nikah had been prepared under duress and the plaintiff had not given her voluntary consent to her marriage with the defendant. The learned Judge, Family Court has lost sight of all these important factors, which militate against the voluntary union of the parties. The result is that the findings of the learned Judge, Family Court are not sustainable and the same are set aside..".
It is clear that the learned District Judge came to a clear cut conclusion that no marriage had taken place between the appellant and the complainant because marriage under duress and without consent of a girl cannot he termed as a marriage at all. The question of a marriage being irregular or regular arises only when the taking place of the marriages is admitted. That being the position, no concession can be given to the appellant that he was under any bona fide mistake that Mst. Husna was his regularly wedded wife. He never denied that he had not been cohabiting with Mst. Husna. Cohabitation in such circumstances is clearly commission of Zina. The fact that the complainant had been taken away from her village and had been subjected to Zina also leaves no room to doubt that appellant had committed offence under section 16 of the said Ordinance. The convictions of the appellant under section 10(3) and section 16 of the said Ordinance are, therefore, not questionable. The same are maintained. However, the sentence of ten years' R.I. Under section 10(3) of the said Ordinance is reduced to R.I. For seven years, while the sentence of five years' R.I. Under .Section 16 of the said Ordinance is reduced to four years' R.I. The sentence of fine of Rs,10,000 for the same offence is reduced to Rs,5,000 in default whereof he will suffer six months' R.I. Sentences of imprisonment on both counts shall run concurrently. Benefit of section 382-B, Cr.P.C. Shall be given.
' Sentences of stripes on both counts are remitted as the same stand abolished vide notification in the Gazette of Pakistan (Extraordinary), dated Monday 15-4-1996.
11. The appellant is on bail. Lie shall be caused to be arrested through non-boilable warrants and lodged in jail to undergo the remaining sentence.