' Through this judgment I propose to dispose of the following two matters as these arise out of the common judgment, dated 20-9-2002 passed by Additional Sessions Judge, Rawalpindi:--
(i) Malik Muhammad Hayat v. The State Cr. Appeal No,264/I of 2003
(ii) In the matter of Jamshed Begum v. The State Cr.Suo Motu Revision No,2/I of 2004.
Through the impugned judgment (both Malik Muhammad Hayat and Mst. Jamshed Begun were convicted for offence under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced to ten years' R.I. Each with a fine of Rs.50,000 or in default to further undergo six months' S.I. Each.
' Malik Muhammad Hayat was further convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to seven years' R.I. With a fine of Rs.50,000 or in default to further undergo six months' S.I.
' Both the sentences awarded to Malik Muhammad Hayat were directed to run concurrently. The benefit of section 382-13, Cr.P.C. Was granted to both the convicts.
2. The facts forming the case of the prosecution may be briefly narrated; on 27-11-1997 Ghazi Muhammad P.W.4 lodged a complaint in writing (Exh.P.C.) before S.H.O. Police Station Westridge, Rawalpindi (later on reduced into formal F.I.R. Exh.P.C./1). It was, inter alia alleged by the complainant that he had been residing in the house of Malik Liaquat alongwith his wife Mst.
Jamshed Begum and children as a tenant. Malik Muhammad Hayat son of Sumandar Khan appellant was putting up in the adjacent house and he was on visiting terms with his family. It was alleged that Malik Muhammad Hayat developed illicit liaison with Mst. Jamshed Begum and enticed her out of the house in his absence.. The complainant was informed by his brother Muhammad Imdad Hussain and Zardad that they had seen both the accused at Chur Harpal Bus Stop Rawalpindi boarding a bus for Tarnole. On the following day Malik Muhammad Hayat appellant came back but he refused to accede to the request of the complainant to return his wife.
It was further alleged by the complainant that Mst. Jamshed Begum filed a suit for dissolution of marriage against him at Rawalpindi which was dismissed on 10-10-1997.
3. After necessary investigation both the accused were challaned to Court.
' Both the accused were charge - sheeted for offences under section 16 and section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. They denied the allegation levelled by the prosecution in toto and claimed to be tried.
4. At the trial, the prosecution produced, in all, seven witness, out of whom, statements of Akhtar Khan constable P. W.1, Nazar Hussain, S.-1. And Muhammad Javed constable P.W.5 are of formal nature and need not commented upon.
5. Dr. Tanvir Akhtar, Medical Officer, P.W.3 deposed that on 16-10-2000 he medically examined Malik Muhammad Hayat and found him fit to perform sexual intercourse, vide his medico-legal report Exh . P. B.
6. Ghazi Muhammad complainant appeared as P.W.4 and deposed that he produced a written complaint before S.Ft.O. Police Station Westridge for registration of the case against both the accused. He then narrated the allegations levelled against the accused, as disclosed in his written application/complaint. According to him a civil suit for dissolution of marriage before Civil Court at Rawalpindi was filed by Mst. Jamshed Begum which was dismissed. He alleged that Malik Muhammad Hayat appellant enticed away his wife and they had been living adulterous life for about two years and Mst. Jamshed Begum had given birth to two illegitimate children.
' This witness was cross-examined at great length. He conceded that Malik Muhammad Hayat had been visiting his house for the last five years before this occurrence. According to him Mst.
Jamshed Begum had filed a suit for dissolution of marriage after she had left his house. He conceded that prior to the occurrence he did not know that the accused had developed illicit relations, inter se.
7. Imdad Hussain P.W.6, brother of the complainant, deposed that on 27-11-1997 he paid visit to the house of the complainant and he was informed by him that Malik Muhammad Hayat had developed illicit relations with his wife. Accordingly, a decision was taken that she would be taken to their native town. On the next day when he had gone to Bazar he saw Mst. Jamshed Begum boarding a bus alongwith Malik Muhammad Hayat for Fateh Jang. He returned to his house and made inquiry from Mst. Asima his daughter who informed them that Malik Muhammad Hayat had enticed away Mst. Jamshed Begum. He deposed that he tried to persuade Malik Muhammad Hayat to hand over the wife of Ghazi Muhammad to him but he refused to oblige, forcing them to lodge criminal case.
' He admitted, in his cross-examination, that he did not verify the allegation of illicit relationship between the two accused.
8. Last witness produced by the prosecution was Maqsood Ali S.-I. (retired) P.W.7 who deposed about registration of case on 27-11-1997 on receipt of written complaint Exh.P.C. He then narrated the various steps, taken by him in the matter of investigation of the case.
9. After closure of the prosecution evidence, the statements of both the accused was recorded under section 342, Cr.P.C. They denied the prosecution allegations in toto.
' Mst. Jamshed Begum, in reply to the question as to why the witnesses have deposed against him she stated that she got Khula from the complainant through the Court. Prior to the said Khula decree she used to reside with the complainant. However, the complainant threw her out of his house then she entered into Sharie Nikah with Malik Muhammad Hayat accused. As regards the allegation that two children born due to her sexual relationship with Malik Muhammad Hayat were illegitimate, she stoutly, refuted it and claimed that they were born out of her wedlock with her co- accused, after the dissolution of her marriage with complainant. She asserted that she had not eloped with Malik Muhammad Hayat. She offered to produce defence evidence and also desired to appear as her own witness, on oath, in terms of section 340(2), Cr.P.C.
' Malik Muhammad Hayat accused also took up similar stance as that of Mst. Jamshed Begum. He contended that Mst. Jamshed Begum started living with him after their Sharie Nikah was solemnized in the presence of the witnesses. He stated that he would lead defence evidence and also appear as his own witness under section 340(2), Cr.P.C.
9. Perusal of the record shows that copy of judgment in dissolution of marriage suit titled Mst.
Jamshed Begum v. Ghazi Muhammad decided by Judge Family Court Fateh Jang, was taken into possession by the police vide Exh.P.A.
10. I have heard the learned counsel for the parties, and perused the record with their assistance.
11. It is contended by the learned counsel for the two convicts that the prosecution had miserably failed to prove their guilt beyond reasonable doubt and impugned judgment is not sustainable in law.
' On the other hand the learned counsel appearing for State has supported the impugned judgment.
12. I find that the prosecution has not been able to bring home the guilt to the two convicts.
' In the first instance it is worth noticing that F.I.R. Was lodged on 27-11-1997 with regard to an occurrence that allegedly took place two A years prior to the said date. The excuse put forth by the complainant for this belated FIR., as given in his complaint/F.I.R1, was that during the interregnum a suit for dissolution of marriage filed by Mst. Jamshed Begum against him remained pending adjudication before competent Court at Rawalpindi and the same was dismissed on 10-10-1997.
This is hardly a satisfactory explanation for the belated F.I.R. There was no legal impediment in the way of the complainant to approach the police for registration of the case immediately after the alleged occurrence. He was not obliged to await the decision of the so-called civil suit. Assuming that the said civil suit was decided on 10-10-1997 no explanation is forthcoming as to why the matter was further delayed and report was lodged with the police on 27-11-1997. This aspect of the matter adversely reflected upon the genuineness of the prosecution story. Unfortunately, this aspect of the matter was not attended to by the learned trial Judge while announcing the impugned judgment. The explanation for delayed F.I.R., offered by the complainant, stands exposed as false in view of the statement of Imdad Hussain, P.W.6, real brother of the complainant, to the effect that he went to the police station alongwith Ghazi Muhammad immediately after having seen the two accused boarding a bus for Tarnoli.
13. The main stay of the prosecution case is the so-called decree of dismissal of dissolution of marriage suit, allegedly filed by Mst. Jamshed Begum at Rawalpindi. It is the case of the prosecution that the attempt to seek dissolution of marriage by Mst. Jamshed Begum vis-a-vis the complainant having been thus frustrated, she continued to be the wife of the complainant. It is on this premises that allegation is founded regarding Zina-bil-Raza by the two convicts for two years, during which period two children were born.
' Strikingly, there is no documentary proof available on the record regarding institution of any suit for dissolution of marriage by. Mst. Jamshed Begum and its decision by the learned Judge, Family Court. No explanation is forthcoming on behalf of the prosecution as to why the said documentary evidence was not produced during the trial. It is well-settled that in case documentary evidence is available then it has to be D produced in Court to prove the crucial facts involved in the case and oral evidence in respect thereof is rendered inadmissible.
' The rule of best evidence was flouted in the case. The prosecution could not be legally permitted to rely on the bald assertion of the complainant that a suit for dissolution of marriage was filed at Rawalpindi by Jamshed Begum and it was dismissed. It was an admission in his own favour. Even otherwise he being motivated and inimical no reliance could be placed on his testimony in this regard.
14. On the contrary the defence had come up with the plea that after Mst. Jamshed Begum was turned out from his house by the complainant she was forced to file a civil suit for dissolution of marriage before a learned Judge, Family Court at Fateh Jang which was decreed in her favour ex parte. Perusal of the judgment shows that this suit remained pending for abbut nine months and all efforts made by the learned trial Court to procure attendance of the complainant proved abortive. Thus, there was left no option with the trial Court but to proceed ex parte qua the complainant/defendant and after recording evidence to pronounce the said judgment. I am constrained to express my dismay that the learned trial Judge completely omitted to notice this judgment, brought on record F Exh.P.A., and draw necessary conclusion therefrom while deciding the case.
' It goes without saying that an ex parte decree; until and unless it is set aside by resort to appropriate legal proceedings, is to be treated to be at par with a decree in a suit, after contest by the defendant.
' In the face of this irrefutable documentary evidence produced by the defence the learned trial Judge could not have recorded a finding that Mst. Jamshed Begum continued to remain the wife of the complainant and further that it was during the subsistence of this marital life that she had been cohabiting with Malik Muhammad Hayat appellant, rendering them liable to be punished for the offence of Zina-bil-Raza. The children born out of the Sharie Nikah between Mst. Jamshed Begum and Malik Muhammad Hayat could not have been treated to be illegitimate.
15. For what has been stated above the impugned judgment is not sustainable in law. The prosecution having failed to prove the necessary ingredients of offence of enticement or Zina-bil- Raza vide sections 16 and 10(2) of the Ordinance, both the accused merited acquittal.
16. The upshot of the above discussion is that the appeal filed by Malik Muhammad Hayat is accepted and he is acquitted. He shall be released from jail forthwith, if not required in connection with any other case.
' Likewise, Mst. Jamshed Begum (Cr.Suo motu Revision No,2/I of 2004) is also acquitted.
17. Both the matters stand disposed of in the above terms.