1998 PLP 729 (MLD)

(6) The age of Mst. Farkhanda has been wrongly indicated as 14/15 years in complaint (Exh. PB) and F.I.R., which becomes 16/17 years in a direct complaint filed by petitioner on 17-1-1993 in the Court of Illaqa Magistrate Police Station, Civil Lines, Rawalpindi whereas Medico-legal certificate declares her age to be that of 19 years and Nikahnama also confirms this age. Her own conduct and various applications do prove that on the date of Nikah she was sui juris and over 16 years of age. This indicates that she was in that age group in which it was not easy to entice her away or be duped for such a longer period starting from 21-12-1992 and continuing for many months. In her own application for grant of bail (Exh. DB) filed in the court of Sessions Judge, Rawalpindi on 6-4-1993 she is stating in paras Nos. 1, 2, 3, 5, 6, 7, and 8 as under: That the petitioner and co-accused Mahmood Hussain and wife of Mahmood Hussain Musarrat Yasmin have been involved in the abovementioned case due to enmity and ulterior motive on the part of the prosecution and complainant. That the petitioner has no concern with the same offence and petitioner is legally wedded wife of the co-accused namely, Muhammad Hussain. The Nikah was performed according to the law. That the petitioner has also stated after her recovery by the police under section 164, Cr.P.C. that she had owned the performance of Nikah with the co-accused Mahmood Hussain. That the petitioner is a major girl. She has performed Nikah with the co-accused namely Mahmood Hussain without any pressure and Nikah was performed on her own free-will. That due to enmity the father of the petitioner has lodged F.I.R., against the petitioner and co-accused namely, Mahmood Hussain. That bail of the co-accused namely Musarrat Yasmin has been granted by the learned Additional District and Sessions Judge Mr. Mazhar Hussain Minhas, Rawalpindi on 9-1-1993 and the bail of the co-accused namely Mahmood Hussain has been admitted by the Lahore High Court Rawalpindi Bench Rawalpindi on 30-3-1993. That the case of the petitioner is also at par with the co-accused. Even otherwise, it stands proved from the evidence on the record that she was a close relative of appellant Mahmood Hussain and his first wife acquitted accused Mst. Musarrat Yasmin. During cross Muhammad Aziz (P.W.2) complainant, has admitted that a day prior to occurrence Mahmood Hussain and his wife Mst. Musarrat had come to his house but Mahmood Hussain left his shop at about 12-00 noon and Mst. Musarrat spent night with Mst. Farkhanda in the same room. This room as per site plan (Exh. PD) is the first-sleeping room with easy exit towards outside the house. Early in the morning both the ladies went towards spring of water alongwith utensils which was 100/150 yards towards north of his house and then both of them went for fetching water in his presence. This piece of evidence indicates earlier close intimacy of the families. During search of the two ladies, he had gone to the house of his brothers Muhammad Ayub and Mubarak. This is another indication of some close intimacy or relationship of the families specially when the complainant and the accused appellants are all Satties by caste. The intimacy to the extent of close relationship is disclosed by acquitted accused Mst. Musarrat Yasmeen in her statement under section 161, Cr.P.C. on 26-12-1992 as under: Farkhanda in her own statements under section 161, Cr.P.C. has further disclosed the inter-relationship of the parties and the reasons for her own elopement with appellant Mahmood Hussain. She is stating on 13-1-1993: All this evidence is enough to prove that she, being a close relative of appellant Mahmood Hussain and his first wife, and there being geo-social nearness and intimacies and mutual confidence of the families, she was in the knowledge of the number of wives, children, habits and sources of income of appellant Mahmood Hussain. Consequently we are not persuaded by the counsel for petitioner that appellant Farkhanda was enticed or taken away by force or show of force.

6. Now arises the question of the existence of a valid marriage as claimed by appellant Mahmood Hussain and denied by appellant Farkhanda and petitioner/complainant. Zina has been defined under Article 4 of the said Ordinance as under:

A man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being validly married to each other. " The learned counsel for petitioner has correctly relied upon the rulings at placentia V, W, and X of Muhammad Azam s case cited as PLD 1984 SC

95. These rulings read: Validity of the marriage is a sine qua ion for the success of the defence of marriage n case of Zina or Zina-bil-Jabr, to Tazir. This Court in Ghulam Shabir Shah v. The Stat (1) has already ruled in this behalf that the word "validly" cannot be treated as a mere surplus age and has to be given full meaning and effect. 'Irregular' marriage, therefore, affords no protection; as, being not a 'valid' marriage It may be added that a 'double' marriage in so far as factual aspect is concerned for the same reasons, would not afford any protection Here a reference to the comparative provision regarding Zina liable to Hadd offence, would illustrate the point. While section 5 of the Ordinance, provides that a person who is not married to and does not suspect himself to be married' to the member of the opposite sex with whom the Zina is said to have been committed, is liable to Hadd; if of course. certain other conditions are satisfied. Thus, the success of the pleas that accused 'suspected himself to be married' to the person concerned will be a defence for him to avoid the Hadd. No such suspicion, tactual or legal, on the part of the accused in the offence of Zina liable to Tazir, has been provided as defence in sections 4 or 6 (1) or 10 of the Ordinance. It is not necessary to go into the reasons for this difference. The law of Tazir is very clear on the point.

One who raises this plea would have to establish the same in law and fact beyond any suspicion about it. If there is failure on his or her behalf for any reason whatsoever to produce evidence, it being the mandate of law as an important part of definition of the offence, once seriously and genuinely, raised (with some foundation and not for the purpose of delay and vexation which features are always discoverable by exercising judicial mind), the Court would be duty bound to examine it in depth, even if it involves action under section 540, Cr.P.C. (first and /or second part) and similar other provisions including those relating to coercive measures for production of evidence. It needs to be observed, however, that keeping in view sections 105 and 106 of the Evidence Act, in the context of the Muslim law attempted to be codified, it is not the intention of this law that merely because of the inclusion of the exception in the very fabric of the definition; its exclusion is the burden of the prosecution. It being an exception involving a special type of knowledge, the burden will be on the person pleading it. But in the context of section 540, Cr.P.C. this burden without shifting from the person concerned, would also be interjected in the duty under section 540 (second part), Cr.P.C. because, its resolution will be essential for just decision of the case." In view of these rulings, the burden of proving existence of a valid marriage was on the appellant Mahmood Hussain who has throughout pleaded it, A and this burden was not on the prosecution except interjection in the duty under section 540 (second part), Cr.P.C and the second part of this section reads:

"and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case." This burden of proving valid marriage was also upon appellant Farkhanda upto the time she was pleading or claiming the existence of such a 8 marriage and that was for about first six months after the occurrence. In fact she has tried to prove it in her statement under section 164, Cr.P.C. stating that on 24th of December, 1992 Mahmood Hussain took her to the house of Molvi Sahib. There, in the presence of five persons namely Muhammad Raheem, Zafar Iqbal, Haji Muhammad Liaqat and Muhammad Ahsan her Nikah was solemnised with Mahmood Hussain has also stated that she has forgotten the name of the fifth witness. Nikahnama produced by appellant Mahmood Hussain and proved by Nikah-Khwan Hafiz Faza1 Dad (D.W.2) and marked also contains the same names as witnesses. But the question to resolve is as to whether these witnesses were really present at the time of Nikah or in fact exist at all or these are only fictitious persons and that to save herself from being takers up as an accused she made a misstatement before the Court of Magistrate Class-I and for the time being was successful to hoodwink the said Court and got herself lodged into Darul Aman and saved herself from remand to police or a judicial custody in a jail. The resolution of this question will depend upon the queer, mysterious, and clever somersaults of the Nikah Khawan Hafiz Fazal Dad (D.W.2) in his conflicting statements at various criminal and Civil Courts and an affidavit as well. In the trial Court Hafiz Fazal Dad appeared in defence of appellant Mahmood Hussain as D.W.2 to prove the existence of a valid Marriage within the meaning of Article 4 of the said Ordinance. He proved solemnization of Nikah on 24-12-1992, the existence of Nikahnama per mark-A and produced Register of Nikah. During cross he admitted that he had appeared before A.C. Cantt. on 26-1-1993, but his statement was obtained through coercion. He admitted that he did not point out to the person recording that statement that it was being obtained by coercion. The statement to which a reference is being -to is Exhibited as Exh. DW-2/A and its substantial part is reproduced:-- This statement before a Class I Magistrate is supported substantially by an affidavit (Exh. DW-2/c) sworn in by this very. Nikah Khawan on 16-1-1993 before oath Commissioner. Relevant part of the said affidavit reads:- It appears from the records that a judgment delivered by the court of Additional District Judge, Rawalpindi on 24-4-1995 was submitted as Exh. PK by the learned D D A. Now this Exh. PK is a judgment in Civil Appeal No. 10 of 1995 Re: Mst: Farkhanda Bibi v. Mahmood Hussain. The appeal was instituted on 4-1-1995 by appellant Farkhanda under section 14 of the Family Court 1964 against judgment and decree dated 14-12-1994 passed by Judge, Family Court, Kahuta, Camp at Kotli Sattian whereby he had dismissed the suit for jactitation of marriage preferred by appellant Farkhanda and had decreed the suit for restitution of conjugal rights preferred by appellant Mahmood Hussain. Para. No. 13 of the judgment per Exh. PK is relevant for the matter under discussion and is reproduced: "The most important and crucial witness on behalf of the defendant is Hafiz Fazal Dad who appeared as D.W.2 and according to respondent's version the Nikah was recited by this witness. I have gone through the statement of this witness carefully which appears to be quite inconsistent, wavering and having lack of confidence. This witness has stated that he refused to perform the Nikah but the respondent threatened him that he will be involved in some case and only on the threat extended by the defendant/respondent the impugned Nikah was solemnized. This fact further creates the impression that as to what were the circumstances felt by D.W.2 that he at first instance refused to perform the Nikah. Similarly this witness has admitted that he got recorded his statement before the Assistant Commissioner, Rawalpindi where he admitted the Nikah was forged and against this witness deposed that the said statement was given as he was afraid. The swearing of affidavit by this witness presented in the Court of Assistant Commissioner, Rawalpinid has also been acknowledged. It is meaningful when stated by this witness that the names of the witnesses of Nikah were filled by Mehmood respondent and their signatures were also obtained in the absence of D.W.2. The discussion then culminates into a fact that before Assistant Commissioner, Rawalpindi and before Family Court the statements and depositions of the Nikah Khawan Haifz Fazal Dad were on the footings to prove that the marriage was not valid, but as D.W.2 in the trial Court delivering the impugned judgment before us he has taken a complete somersault and has tried to alter the course of justice to prove that in fact a valid marriage had taken place. We have taken a notice of the offences committed by Hafiz Fazal Dad (D.W.2) and have found him falling within the mischief of sections 466 and 468 P.P.C. The S.S.P. Rawalpindi is hereby directed to lodge an F.I.R., against this offender and his accomplices who had otherwise used a sanctified religious contract of Nikah for commission of the offence of forgery as defined under section 463, P.P.C. We have pondered about the judgment dated 24-4-1995 as delivered by the appellate. Court of Additional District Judge, Rawalpinidi, although not impugned before us, and have found it well reasoned to the extent that a valid marriage between the two appellants had never taken place. It has been brought to our notice by the counsel for appellant Mahmood Hussain and additional documents were submitted by him to prove that a Writ Petition No. 398 of 1996 was filed in the Lahore High Court, Rawalpindi Bench assailing the above mentioned judgment of Additional District Judge, Rawalpindi. We have gone through these documents and have found the following order passed by the said honourable High Court on 21-5-1996. "Learned counsel submits that criminal appeal in 'respect of the same dispute is pending adjudication before the Federal Shariat Court at Islamabad. It will be appropriated that this case be taken up after the decision of the said Court adjourned. " Although we are not sitting as appellate or revisional authority to decide the matters pertaining to Family Laws, yet the writ petition was adjourned sine die till decision of this Court. As discussed above, we have come to the conclusion that the prosecution has proved beyond reasonable doubts that no valid marriage persisted between the appellants and that the offence of the two appellants is falling within the scope of Article 10 (2) of the said Ordinance. Offence under Article 16 of the said Ordinance against appellant Mahmood Hussain is not proved beyond shadow of doubt. Appellant Mahmood Hussain has already been convicted under the said Article of the said Ordinance and sentenced to the maximum. The impugned judgment is upheld to the extent of the conviction and sentence of appellant Mahmood Hussain and his appeal is dismissed. Benefit of section 382-B, Cr.P.C. is extended to him. So far as the question of the quantum of sentence of appellant Farkhanda Bibi is concerned, we do not agree with the proposed mitigating circumstances in her case. If she is married with one Muharram Ali, appellant Mahmood Hussain is also married with two wives and has to maintain, at least, twelve children from them. The marital status of an offender is not a mitigating circumstance specially when he or she tries to hoodwink the Courts and do not come with clean hands. They lose their rights upon the law when such misconduct is shown. The conduct of appellant Farkhanda has already been highlighted earlier. Indeed she was not experienced in these ugly scenes of life, yet she was 18 or 19 "years age and knew well what she was doing. She did not care about the honour of her father and family and got blinded by the lust which has taken her to such an incurable blunder. The learned counsel for State has correctly contended that she is an equal partner in all the offences committed by appellant Mahmood Hussain including procurement of a forged Nikahnama. In view of Article 25 of the Constitution of the Islamic Republic of Pakistan, she being a citizen of Pakistan, is equal before law qua her active accomplice appellant Mahmood Hussain. The said Articles reads:

Article-25: All citizens are equal before law and are entitled to equal protection of law. (2) there shall be no discrimination on the basis sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. Although no discrimination on the basis of sex alone is allowed by the Constitution, we are hereby maintaining the conviction and sentence awarded by the Trial Court in the case of appellant Farkhanda Bibi on consideration of the fact that no notice for enhancement of sentence has been given to this appellant and without hearing her, the principles of audi alteram partem shall be violated. Conviction and sentences awarded to her vide the impugned judgment are therefore, maintained. Appeal of appellant Mst. Farkhanda Bibi is also dismissed. Benefit of section 382-B, Cr.P.C. is extended to her. Both the appeals, therefore, fail in terms as discussed above. So far as Criminal Revision Petition is concerned, it has not been pressed by the learned counsel for petitioner to the extent of the prayer to convict acquitted accused Mst. Musarrat Yasmin under Article 16 of the said Ordinance. Hence it is dismissed as withdrawn to that extent. So far as the prayer in the said petition for convicting appellant Mahmood Hussain under Articles 10 (3) and 16 of the said Ordinance and acquitting appellant Farkhanda Bibi from conviction under Article 10 (2) of the said Ordinance is concerned, it is dismissed in view of the abovementioned discussion. Both the appellants are on bail. Their bail bonds are cancelled. They may be taken into custody to serve out the sentence. N. H. Q./1159/FSC Appeal dismissed.