1993 P Cr (PLP)

(ii) Under section 16 of the Ordinance To suffer R.I. for one year, five stripes and fine of Rs.500 in default to suffer R.I. for three months more. Mst. Amir Mai: (i) Under section 10(2) of the Ordinance To suffer R.I. for five years, thirty stripes and fine of Rs.1,000 in default to suffer R.I. for six months more. (ii) Under section 494, P.P.C. To suffer R.I. for one year and to pay fine of Rs.500 in default to suffer R.I. for three months. Bashir Ahmad, Nazir Ahmad and Mst. Maqsood Mai: Under section 16 of the Ordinance To suffer R.I. for one year, five stripes and fine of Rs.500 each, in default to suffer R.I. for three months more. The sentences of appellants Rab Nawaz and Mst. Amir Mai were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was given to all the appellants.

2. It is case of the prosecution that on the night between 11th/12th May, 1987, P.W.3 Ashiq Hussain had gone out of his house. When he returned the next day he found that his wife appellant Mst. Amir Mai with a two months old daughter was missing from his house. He searched for her. Witnesses Ghulam Hussain (not examined) and Mazhar 1qbal, P.W.2 informed him that they had seen his wife and child with all the four appellants at Khan Bela bus stand. He, therefore, contacted the appellants for return of his wife and child but could not succeed, hence filed complaint Exh.PA. before P.W.4 Liaqat Ali, S.H.O. of Police Station Jalalpur Pirwala. On the basis of his statement, F.I.R. was registered at Police Station Jalalpur Pirwala on 19-7-1987. After registration of the case, Liaquat Ali inspected the spot and prepared site plan Exh.P.C. on the same day. He recorded statements of witnesses under section 161, Cr.P.C. He searched for the accused but they were not available. Subsequently, all of them got bail before arrest from. Court. Thus, they were formally arrested by him on 30-12-1987. The complainant produced before this witness photostat copy of his Nikahnama Exh.P.B. The appellants also produced before him Nikah Nama of Rab Nawaz with Mst. Amir Mai Exh.P.H., and photostat copy of the judgment and decree of Family Court dated 5-10-1985. However, after usual investigation, he challaned the appellants before the Court to fare trial for the offence committed by them.

3. The case came for trial before the learned Additional Sessions Judge, Multan, who framed charge under section 16 of the Ordinance against all the appellants but framed charge under section 10(2) of the Ordinance against appellant Rab Nawaz and Mst. Amir Mai. He also charged appellant Amir Mai under section 494, P.P.C. The appellants denied the charge and claimed trial. The prosecution, therefore, examined P.W.1 Abdul Khaliq A.S.I. who on 19-7-1987 recorded the formal F.I.R. Exh.PA. at Police Station Jalalpur Pirwala, P.W.2 Mazhar Iqbal who saw all the appellants at bus-stand P.W.3 Ashiq Hussain, the complainant and aggrieved person, and P.W.4 Liaquat Ali, Sub-Inspector Police, the Investigating Officer. In their statements recorded under section 342, Cr.P.C. the appellants denied the allegation. However, Appellant Rab Nawaz explained that complainant Ashiq Hussain was the ex-husband of Mst. Amir Mai. Against him she got a decree of dissolution of marriage. Later on he and Mst. Amir Mai entered into Nikah and were living as husband and wife. The same is the stand of last Amir Mai and other appellants. Ho ever the learned Additional Sessions, Judge vide his judgment, dated 28-9-1991 found the appellants guilty for, the offence and convicted them for the same as mentioned hereinabove. Hence this appeal.

4. Mr. Abdul Aziz Khan Niazi; Advocate for the appellants and Mr. Muhammad Akhtar, Additional Advocate-General with Rao Khalil Ahmad, Advocate, appeared for the State.

5. It may be observed that is para. 9 of his judgment, the learned Additional Sessions Judge has observed that appellant Rab Nawaz and Mst. Amir Mai had married during Iddat period, hence they had committed sexual intercourse with consent which falls within the mischief of section 10(2) of the Ordinance. He on the same basis found appellant Mst. Amir Mai guilty for offence under section 494, P.P.C. and appellants Rab Nawaz, Bashir Ahmad, Nazir Ahmad and Mst. Maqsood Mai guilty for the offence under section 16 of the Ordinance.

6. With the assistance of the learned counsel for the appellants and the State, I have gone through evidence of P.W.1 Abdul Khaliq, P.W.2 Mazhar Iqbal, P.W.3 Ashiq Hussain and P.W.4 Liaquat Ali, the statements of Mst. Amir Mai and Rab Nawaz and also perused the documents produced by the prosecution and defence. In support of his marriage with Mst. Amir Mai, Ashiq Hussain, P.W.3 has produced Nikahnama Exh.P.B. dated 23-4-1973. The marriage of P.W.3 Ashiq Hussain with appellant Mst. Amir Mai was dissolved on 29-11-1975. The judgment is Exh.P.H. and the decree is Exh.P.J. Appellant Rab Nawaz and Mst. Amir Mai contracted marriage on 12-12-1975, Nikahnama is Exh.P.B. The learned Additional Sessions Judge observed that appellants Rab Nawaz and Mst. Amir Mai had married during Iddat period. Thus, it could not be a valid one. He placed reliance on case of Mst. Kundan Mai v. The State reported in P L D 1988 FSC

89. It may be observed that the facts of the case in hand are different than the one relied upon by the Court in abovesaid citation. In that citation, Mst. Kundan Mai had obtained ex parte decree and thereafter got married within Iddat period. However, the ex parte decree was set aside later. Here in this case the ex parte decree has not been set aside and is intact till today. Besides, in the above citation, attention of the Court was drawn to the provisions of sections 4 and 5 of the Ordinance. Obviously attention of the Court was not drawn to subsection (c) of section 2 of the Ordinance. The subsection defines "marriage" means marriage which is not void according to the personal law of the parties, and "married" shall be construed accordingly. Besides, the marriage of appellants Rab Nawaz and Mst. Amir Mai had taken place long back in the year 1975. Thereafter, the spouses had been living together even after expiry/ of period of Iddat. Complainant Ashiq Hussain " such had riled the case against the appellants on 19-8-1987. The evidence of Ashiq Hussain, P.W.3 and Mazhar Iqbal, P.W.2, therefore, on face of it seems to be false. No reliance, therefore, can be placed thereon. As a matter of fact the learned Additional Sessions Judge has not considered prosecution evidence at all and has based conviction and sentences of the appellants on the material which has been produced by the appellants themselves. In absence of prosecution evidence, the defence version is to be accepted in toto but not partly. In such situation, the learned counsel for the appellants, and State have rightly canvassed that no offence was made out against all the appellants. They as such are entitled to acquittal.

7. I am, therefore, inclined to accept the appeal, set aside the conviction and sentence of the appellants awarded to them by the learned Additional Sessions Judge, Multan, on 28-9-1991. They are acquitted of the charge. They are reported on bail. They are discharged from the obligation of their bail bonds. N.H.Q./837/FSC Appeal accepted.