' CH. EJAZ YOUSAF, J.--- This judgment will dispose of two connected appeals bearing Criminal Appeal No,75/I of 1999 filed by Alam Zeb son of Shah Zaman and Jail Criminal Appeal No,95/I of 1999, filed by Mst. Zahiba Bibi daughter of Kachkol Khan as well as Criminal Revision No,13/I of 1999 as all arose out of the same judgment, dated 3-5-1999 passed by the learned Additional Sessions Judge, Haripur, whereby the appellants have been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and sentenced to eight years (not mentioned R.I. Or S.I.) each and a fine of Rs,5,000 or in default thereof to further undergo six months' S.I. Each. Benefit of section 382-B, Cr.P.C. Has, however, been extended to the appellants. Criminal Revision No,13/I of 1999 has been filed by Kachkol Khan, petitioner/father of appellant Mst. Zahiba Bibi for enhancement of sentence of appellant Alam Zeb and for setting aside the conviction and sentences recorded by the learned trial Court against Mst.
Zahiba Bibi appellant.
2. Briefly stated, the prosecution case as gathered from the record is that on 19-4-1998 report Exh.P.A./1 was lodged by Mst. Zahiba Bibi daughter of Kachkol Khan with Police Station Nara Amazai, District Haripur, wherein it was alleged that she was resident of Village Gali._ About 3 or 4 months ago, she in order to fetch fire wood had gone to Dhaka Rakh Ramli where, appellant Alam Zeb son of Shah Zaman committed Zina-bilJabr with her, on pistol point. It was further alleged that since said Alam Zeb had also threatened her not to disclose the incident to anybody or else, she would be killed, therefore, she kept quiet. However, since now she has become pregnant, therefore, perforce she has to disclose the incident. On the stated allegations a formal F.I.R. Bearing No,6, dated 19-4-1998 was registered at Police Station Nara Amazai under section 5/10 of the Ordinance and investigation was initiated in pursuance thereof. On the completion of investigation accused/appellants were challaned to the Court for trial under section 5/10 of the Ordinance.
3. Charge was accordingly framed against the accused/appellants to which they pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellants produced four witnesses, in all. P.W.1 Kachkol Khan is father of the complainant. He deposed that during the days of occurrence he had gone with a Tableeghi party.
On his return, he was told that Alam Zeb, on pistol point, had committed Zina-bil-Jabr with her daughter Mst. Zahiba Bibi as a result whereof she became pregnant. P.W.2 lady doctor Fauzia Yasmin, W.M.O., had on 21-4-1998 examined Mst. Zahiba Bibi and found as under:-- "(1) On P.V. Examination she is not virgin, as her hymen is rupture, vagina admits two fingers easily.
No bleeding or any foreign body etc. On any part of her body.
(2) She is pregnant of 2-1/2/3 months. On P.V. Examination utrus was of 10 to 12 week size.
(3) As already answered that she was pregnant of 2-1/2 to 3 months.
(4) She has fully developed secondary sex character. Her age apparently seems to be 18 to 20 years. Definite opinion can be given after consulting the Radiologist.
' She produced in Court medical certificate as Exh.P.W.2/1. She opined that according to the Radiologist, the age of Mst. Zahiba Bibi at the time of her examination was about 18 years. P.W.3 Dr. Abdur Rauf Khan, Medical Officer, had on 6-5-1998 examined Alam Zeb qua the potency test. He gave report Exh.P.W.3/1 regarding the examination. P.W.4 Sardar Hukam Dad, S.-I. Is the Investigating Officer of the case.
5. On the conclusion of prosecution evidence the appellants were examined under section 324, Cr.P.C. Wherein they denied the charge and pleaded innocence. However, they failed to lead any evidence in defence or appear as their own witnesses in terms of section 340(2), Cr.P.C. In answer to the question "what is your statement and why you have been charged" the appellant Zahiba Bibi while reiterating the version contained in the report, stated that she was subjected to Zina-bil-Jabr and that she was innocent.
6. After hearing the arguments of the learned counsel for the parties, the learned trial Court convicted the appellants and sentenced them to the punishment as mentioned in the opening para. Hereof.
7. It would be worthwhile to mention here that in Jail Criminal Appeal No,95/I of 1999 the stand taken by Mst. Zahiba Bibi is that she was lawful wife of the co-convict Alam Zeb and that the Nikah was not got registered due to fear and wrath of her parents, therefore, she having committed no offence be acquitted of the charge.
8. On 3-11-1993 when the matter was taken up it was stated by the learned counsel for the appellant/convict Alam Zeb that Mst. Zahiba Bibi appellant in Jail Criminal Appeal No,95/I of 1999 was legally-wedded wife of his client and he i,e, Alam Zeb accepts that the child born, out of the wedlock, is his child. He further submitted that the stance taken in the Court below by Alam Zeb was due to pressure and out of fear that he would be killed, if the above plea is taken. He pleaded that in the circumstances appellant Alam Zeb wants to make a statement before this Court. Since in the connected appeal i,e, Jail Criminal Appeal No,95/I of 1999 learned counsel for the appellant had sought adjournment on the ground of illness, therefore, matter could not be proceeded with and was adjourned. However, the Jail Authorities were directed to produce both the appellants in Court.
9. When the instant appeal was taken up for hearing on 18-11-1999 Mst. Zahiba Bibi filed in Court application Exh.1 stating therein that she had married co-convict Alam Zeb with the consent of her parents and in the presence of two witnesses, namely, Abdul Qayyum son of Sikandar Shah and Inayat-ur-Rehman son of Noor Shah and that; after her marriage relations between her parents and the in-laws became strained. In the meantime, she visited the house of her parents, she wanted to return to her house but was restrained by her parents as well as brothers and was threatened not to join her husband otherwise, would be killed.
10. Notice of the above referred application was given to the parties. In response whereof learned counsel for appellant Alam Zeb stated that Alam Zeb also accepts Mst. Zahiba Bibi as his legally- wedded wife and has already sought permission to make a statement before the Court.
11. In the circumstances, it was deemed appropriate to record statements of both the appellants/convicts on oath. In her statement before this Court Mst. Zahiba Bibi deposed that she had got written Exh.1 from a co-prisoner. It bears her thumb-impression at Exh.1/A. About two years ago she had married Alam Zeb appellant. The marriage was performed in the village. She had lodged the F.I.R. Exh.P.A. With the police under pressure of his brothers. They had threatened her that she would be done to death if the complaint is not made. Her statement before the Court below was under pressure of her brothers. Since she has been detained in jail for a considerable period, therefore, she having become free of their influence and being cautious of the fact that no further harm could be done to her, has come out with the true facts. She further deposed that the minor child namely, Kinza is the offspring of her marriage with appellant/convict Alam Zeb and she had conceived the child from him. She added that even if, her appeal is not accepted, she will not get back from the correct position that she had married Alam Zeb, She further disclosed that she understands that on her statement made before this Court, she can be prosecuted for having lodged false F.I.R., earlier. On the conclusion of her statement learned counsel for the parties were asked to suggest any question that may be asked. From the appellant in order to reach at a correct decision in the matter, but no one suggested any question.
12. Alam Zeb, appellant/convict in his statement before this Court deposed that he had entered into marriage with Mst. Zahiba Bibi about two years ago in village Jab Gali and out of the wedlock a female child has born. He owned her paternity. In the Court below too, he had not denied the marriage with Mst. Zahiba Bibi. In all circumstances he claims Mst. Zahiba Bibi as his wife whether or not his appeal is accepted. In the end of his statement learned counsel present for the parties were again afforded opportunity to put any question with the permission of the Court, but none of the counsel present suggested any question.
13. After recording the statements of the appellants/convicts, the learned counsel for the parties were directed to address the Court. Dr. Muhammad Aslam Khaki, Advocate, learned counsel appearing for Alam Zeb contended that since Mst. Zahiba Bibi, the complainant has now come out with the truth and has categorically pleaded that she is legally wedded wife of appellant Alam Zeb and the female child, namely, Kinza is the outcome of the wedlock, therefore, the allegation of Zina- bil-Jabr or Zina-bil-Raza, whatsoever was alleged has vanished. He stated that since now it has come on record that complaint/F.I.R. Exh.P.A. Was got registered under compulsion and duress and was false, thus, conviction and the sentences recorded as a result thereof, cannot be sustained. He added that since the spouses are not disputing the factum of Nikah, therefore, their Nikah is valid under the rule of "testification of the spouses "URDU TEXT" and though Nikah was witnessed by Abdul Qayyum son of Sikandar Shah and Inayat-ur-Rehman son of Noor Shah yet, the condition of presence of witnesses would be attracted only if there was a dispute between the parties regarding the Nikah. In support of the contention he placed reliance on the cases reported as PLD 1982 FSC 43 and PLD 1983 FSC 483. Dr. Muhammad Aslam Khaki, in support of his contention also filed written arguments wherein he stated that as per Jurists, in case of doubt in Nikah, the presence of Nikah has to be presumed. Reliance inter alia amongst others, was placed on Kitabul Fiqh Vol. V, p.169. In answer to the question, if the parties were in Nikah, why they had omitted to disclose it before the trial Court, the learned counsel for appellant Alam Zeb stated that the environment around, especially in N.-W.F.P. That, the parents kill their daughters as well as their husbands if the girls contract marriage without their consent, prevented the appellant in doing so and it was exactly the situation in the case of the appellants. In order to supplement his above contention he filed photostat copies of the news clippings regarding killing of the spouses, with his written arguments. He stated tl)at state of coercion in the society was also taken notice of by the superior Courts in the cases reported as PLD 1984 SC 95 and 1983 SCM R 942.
14. Mr. Javed Aziz Sindhu, Advocate, learned counsel appearing for Mst. Zahiba Bibi appellant, while adopting the arguments made by the learned counsel for the appellant Alam Zeb stated that since now it has been established that the parties are in the nuptial tie and child born was out of the wedlock, therefore, conviction and sentences recorded against them be set aside.
15. Mr. Muhammad Aslam Uns, Advocate, learned counsel appearing for the petitioner Kachkol Khan in Criminal Revision No,13/I of 1999, however, tried to canvass that the stand taken by the appellant Alam Zeb was false and that he was responsible for the commission of Zina-bil-Jabr, thus, was rightly convicted and sentenced by the learned trial Court.
16. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the entire record carefully. Admittedly, the machinery, of law was set on motion by Mst. Zahiba Bibi through complaint Exh.P.A. As a result whereof both the appellants were challaned and charged under section 5/10 of the Ordinance and convicted under section 10(2) of the Ordinance. At the trial though four witnesses were produced by the prosecution to prove the charge yet, both the appellants were convicted primarily due, to the pregnancy conceived by Mst. Zahiba Bibi which according to her earlier stance was the outcome of Zina-bil- Jabr. Though as stated above her stand before the trial Court was that she was subjected to Zina- bil-Jabr, yet in the appeal as well as before this Court, she came out with all together a different plea and pleaded that she was legally wedded wife of appellant/convict Alam Zeb. The stand taken by her is also admitted by appellant/convict Alam Zeb to be correct and he has also owned minor girl Kinza as his daughter. Apparently there is nothing on record to disbelieve their statements. This Court in the case of Arif Hussain v. The State reported as PLD 1982 FSC 42 has already approved the principle of Tasadiqul Zojain in the following words:-{{URDU TEXT}} ' Further a Division Bench of this Court in the case of Muhammad Ramzan v Muhammad Saeed and 3 others PLD 1983 FSC 483, while relying on the above case, was pleased to hold that: "it ;s not necessary to rely upon or prove a Nikahnama to establish marriage and that mere statements of accused persons claiming that they are husband and wife is sufficient to establish Nikah and the relationship of husband and wife".
Since Mst. Zahiba Bibi has resiled from her earlier statement, there appears to he nothing left on record to substantiate the charge. It may be pointed out here that statement of P.W.1 Kachkol is primarily hearsay and is based upon the disclosure allegedly made to him by Mst. Zahiba Bibi, whereas rest of the witnesses are formal in nature and their statements are of no help to the prosecution so tar as it relate to the charge of Zina. It is well-established that unless substantive or direct evidence is available conviction cannot he based on any her type of evidence, howsoever, convincing it may be. Reliance in this behalf may be placed on the case of Muhammad Noor v.
Member-I, Board of Revenue, Balochistan and others reported as 1991 SCM R 643 wherein the Honourable Supreme Court of Pakistan has been pleased to lay down as under:-- "The answer obviously is in the negative. We say because none of the pieces of evidence relied upon is a substantive piece of evidence and so long a substantive or direct evidence is not available no other type of evidence, howsoever, convincing it may be, can be relied upon or can form the basis of conviction."
' In another judgment delivered in the case of Qalb Abbas alias Nahola v. The State reported as 1997 SCM R 290, the Honourable. Supreme Court has re-confirmed the above view. Thus, in the circumstances of the case conviction and sentences recorded against the appellants cannot be sustained
17. The upshot of the above discussion is that appeals filed by both the appellants are accepted and convictions and sentences recorded against them by the learned Additional Sessions Judge, Haripur vide his judgment, dated 3-5-1999 are set aside. They be set at liberty forthwith if not required in any other case. Criminal Revision No,13/I of 1999, filed by Kachkol Khan has partially borne fruit because conviction and sentences recorded against Mst. Zahiba Bibi have been set aside. However, in view of above findings, the relief claimed therein, regarding enhancement of sentences of appellant Alam Zeb cannot be granted to which extend the petition is dismissed.