MUHAMMAD YUNUS SURAKHVI, C.J.---This is an acquittal appeal directed against the judgment passed by the Shariat Court on 2--7-2001, whereby the appeal filed by the appellant against the accused---respondents was dismissed.
2. The necessary facts, precisely stated, are that the complainant-appellant on 14-6-1990 moved an application at Police Station Bagh that his daughter, Mst. Nishad Akhter, respondent No.2 herein, had fled away from his house between the night of 13-6-1990 whose husband, Muhammad Riaz, son of Said Akber Khan, is earning his livelihood abroad. On 16-6-1990 the complainant-appellant moved another application before -the Police Station, Bagh stating therein that Mst. Nishad Akhter had run away on 13-6-1990 from his house and it is apprehended that Muhammad Riaz, son of Sardar Qamar-uz-Zaman Khan, caste Maldial, resident of Choki, had abducted her for toe purpose and intention of committing Zina and had detained her whereas he had full knowledge that Mst.
Nishad Akhter is a married woman. The complainant in his application also stated that Mst. Nishad Akhter is living in the house of her father after having been turned out of her house by her husband for the last three years and it is he who bears the expenses of her livelihood.
3. The Police Station, Bagh on the basis of complaint registered a case vide No.82 of 1990 against Mst. Nishad Akhter and Muhammad Riaz, son of Sardar Qamar-uz---Zaman Khan, under sections 10, 11 and 16 of the Offence of Zina (Enforcement of Hudood) Act (hereinafter to be referred as Z.H.A.). After taking necessary proceedings, Mst. Nishad Akhter alongwith the other accused was recovered by the police from the house of one Hanif at Beer Pani and ultimately the police submitted a challan before the trial Court. The trial Court after necessary proceedings acquitted both the accused under sections 11 and 16 of Z.H.A., however, convicted them under section 10 Z.H.A.
And sentenced them to 5 years' rigorous imprisonment and awarded a punishment of Rs.2,000 as fine alongwith the sentence of 10 stripes each. Mst. Nishad Akhter was also given the benefit of section 382-B, Cr.P.C. On appeal taken to the District Criminal Court, Bagh by the accused- respondents, it vide its order dated 2-8-1994 acquitted the accused-respondents by giving them the benefit of doubt while accepting their appeal and set aside the judgment of the trial Court. It was observed by the District Criminal Court, Bagh that the accused-respondent Muhammad Riaz, son of Sardar Qamar-uz-Zaman Khan, has already undergone the sentence of 4 years and it would be in the interest of justice to be lenient in the matter of sentence to Mst. Nishad Akhter. The Court also extended to both the accused-respondents the benefit of section 382-B, Cr.P.C. And ultimately acquitted them. It is pertinent to note that against the sentence awarded to accused- respondents by the Tehsil Criminal Court, Bagh, the complainant or the State did not file any appeal. On the other hand it were only the accused-respondents who filed appeal against the conviction order of the trial Court before the District Criminal Court, Bagh. Against the acquittal order of respondents recorded by the District Criminal Court, Bagh vide its judgment dated 2-8- 1994, Muhammad Feroz Khan, complainant-appellant, filed an acquittal appeal before the Shariat Court which vide its impugned judgment dated 2-7-2001 dismissed the appeal and upheld the judgment passed by the District Criminal Court, Bagh. It is the aforesaid judgment of the Shariat Court dated 2-7-2001 which is the subject-matter of present acquittal appeal.
4. In support of appeal it was vehemently contended by Mr. M. Tabassum Aftab Alvi, the learned counsel for the complainant appellant, that the District Criminal Court as well as the Shariat Court have erroneously relied upon a Nikahnama claimed to have been executed between Muhammad Riaz, son of Sardar Qamar-uz---Zaman Khan, and Mst. Nishad Akhter. This Nikahnama, according to the learned counsel for the appellant, had neither been a part of file of the trial Court nor the same was tendered in evidence at the time of recording the evidence of prosecution. It was simply attached with the file of District Criminal Court, Bagh and never exhibited as a piece of evidence, therefore, no reliance could have been placed on such a document. Similarly it was also contended by the learned counsel for the appellant that Mst. Nishad Akhter filed a suit for jactitation and Muhammad Riaz, son of Sardar Qamar-uz-Zaman Khan, also filed a suit for restitution of conjugal rights and of permanent injunction before the Judge Family Court, Bagh, however, both the suits were dismissed on 27-3-1999. Thus, this being a strong evidence against the accused---respondents that they were not having the relationship of husband and were, the birth of a child in absence of Muhammad Riaz, son of Said Akbar Khan, was sufficient proof of the fact that Mst. Nishad Akhter contracted an illegal marriage with Muhammad Riaz, son of Sardar Qamar-uz-Zaman Khan, and gave birth to an illegitimate child. This being an ample proof of Zina having been committed by the accused persons, both of them were liable to be convicted for the offence under section 10, Z.H.A. The learned counsel for the appellant placed reliance on reported cases titled Akbar Hussain alias Bundoo v, The State 1992 PCr.LJ 1823; Muhammad Yusuf v. The State PLD 1985 FSC 264 and Ghulam Hussain v. The State 1990 SCMR 123.
5. Mr. Riaz Navid Butt, the, learned Additional Advocate-General, fully supported the arguments advanced by Mr. M. Tabassum Aftab Alvi, the learned counsel for the complainant-appellant.
6. On the other hand Kh. Shahad Ahmed, the learned counsel for respondent No. 1, submitted that even if the entire case of prosecution is admitted as correct, the accused-respondents have been absolved of the liability by undergoing the sentence which was awarded to them by the trial Court.
The learned counsel contended that both the accused have undergone the sentence awarded to them and they were given the benefit of section 382-B, Cr.P.C. By the District Criminal Court. Mst.
Nishad Akhter was also given the benefit in the matter of sentence that she has given birth to a child and if she remains in jail, it would ruin the future of the minor child. The learned counsel placed reliance on a case reported as Habib-ur---Rehman's and 9 others v. Muhammad Aziz and 2 others (1997 SCR 253).
7. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. The accused-respondents were convicted by the trial Court vide its order dated 18-8-1991 and were awarded the sentence of five years' rigorous imprisonment under section 10, Z.H.A. And a fine or Rs.2,000 alongwith the punishment of 10 stripes each by the trial Court. The order or trial Court convicting the accused-respondents went unchallenged by the complainant, Muhammad Feroz Khan. This shows that he was fully satisfied with the conviction order passed by the trial Court against the accused---respondents. However, the accused respondents filed an appeal against their, conviction order before the District Criminal Court, Bagh which vide its order dated 2-8-1994 by giving them the benefit, of doubt acquitted them. Nevertheless, it was observed by the District Criminal Court that the accused-respondent Muhammad Riaz, son of Sardar Qamar-uz-Zaman Khan, has already undergone a sentence of 4 years and he is also entitled to the benefit of section 382-B, Cr.P.C. Similarly it was further observed that Mst. Nishad Akhter, the co-accused, after having given birth `to a child is also entitled to leniency in the matter of punishment as the life of minor child would be ruined in case she remains in jail. Moreover she was also held to be entitled to the benefit of section 382-B, Cr.P.C. This shows that although both the accused were acquitted by giving them the benefit of doubt but at the same time it was observed that they have already undergone the sentence awarded to them by the trial Court.
8. It may also be pointed out that the main thrust of the learned counsel for the appellant, Mr. M.
Tabassum Aftab Alvi, is that the District Criminal Court and the Shariat Court have placed reliance upon a Nikahnama which was never executed between the accused persons nor the same was tendered in evidence as it was simply attached at the stage of first appeal before the District Criminal Court, Bagh. Be that as it may, the fact remains that Mst. Nishad Akhter has made it categorically clear in her statement under section 342-B, Cr.P.C. That after having been divorced from her first husband, Muhammad Riaz, son of Said Akber Khan, she married the accused--- respondent, Muhammad Riaz, son of Sardar Qamar-uz-Zaman Khan. The contention raised by Mr., M. Tabassum Aftab Alvi is correct that the second Nikahnama claimed to have been executed between the accused persons was attached at the stage of appeal before the District Criminal Court, therefore, no reliance could be placed on such a Nikahnama which was not tendered in evidence. Similarly from the prosecution side a judgment passed by the Judge Family Court, District Bagh has been placed on record, probably at the stage of appeal before the Shariat Court as the same was also not tendered by the prosecution during the trial, the same also cannot be looked into. This judgment of the Judge Family Court was passed on 27-3-1999 whereas the accused were convicted by the trial Court on 18-8-1991. This clearly shows that during the trial this judgment dated 27-3-1999 was not tendered in evidence on behalf of prosecution, as such keeping in view the similar principle as has been kept in mind while rejecting the Nikahnama of accused-respondents, this piece of evidence is also excluded from consideration.
9. We are of the considered view that since the accused persons have undergone the sentence awarded to them and it was for this reason that after giving them the benefit of section 382-B, Cr.P.C. As well as of some other matters, they were acquitted by the District Criminal Court, Bagh.
An accused cannot be vexed twice for the same offence. In case of acquittal of an accused there is always a double presumption of innocence in his favour. The first presumption in favour of accused is that he cannot be termed as a criminal unless the guilt is proved against him. Similarly the second presumption is that if a person is acquitted by a Court of competent jurisdiction, he has a double presumption of innocence in his favour.
10. The authorities cited by the learned counsel for the appellant as well as by the learned counsel for respondent No.1, having nothing common with the facts and circumstances of the present case, have no relevancy and as such need not be discussed.
11. Keeping in view the overall circumstances of the case, we find no fault in the judgments recorded by the District Criminal Court, Bagh dated 2-8-1994 and the Shariat Court dated 2-7-2001; therefore, by upholding the same we dismiss the appeal filed by the complainant-appellant and uphold, their acquittal orders.