P L D 1988 Federal Shariat Court 22 (PLP)

FAKHRUDDIN H. SHAIKH, J.‑‑This is an appeal from the judgment of Pirzada Ata Mohy‑ud‑Din Shahid, Additional Sessions Judge, Jhang, dated 19‑9‑1987, whereby the appellants were convicted under section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, (hereinafter referred to as the said Ordinance) and sentenced to suffer R.I. for six years each, whipping numbering thirty stripes each and to pay fine of Rs.2,000 each or in default of payment of fine to further undergo R.I for six months each. Appellant Yousaf was also charged for offence under section 16 of the said Ordinance, but was acquitted of the charge. Two co‑accused namely Iltaf and Fazal were also tried alongwith the appellants, but they were also acquitted.

2. Mst. Saleem appellant was aged 23 years at the time of the incident, which is alleged to have taken place on 28‑5‑1985. She is daughter of PW.4 Rehmat Ali. The report of the incident was lodged after 15 days of the incident on 13‑6‑1985 at Police Station Bhawana by complainant Nazir, who claimed to be her husband. The case was investigated by PW.2 Muhammad Siddiq, S.I. Bhawana Police Station. On 28‑7‑1985 he had, arrested the two appellants formally as they had already obtained bail before arrest. The acquitted co‑accused were also arrested. On 31‑7‑1985 appellant Yousaf was got medically examined to determine his potency. On 2‑9‑1985 Mst. Saleem was also got medically examined. After usual investigation the appellants alongwith the acquitted co‑accused were sent up for trial.

3. In their statements under section 342, Cr.P.C. the appellants have stated that they have contracted Nikah with each other and that there was no question of their indulging in Zina.

4. In support of the prosecution case there is evidence of PW.1 Dr. Muzafar Ahmad, PW.4 Rehmat Ali, PW.5 Noor Muhammad, PW.6 Ramzan, PW. 7 Anwar, PW.8 Khadim, PW.9 Nazir, complainant and PW.10 Lal, PW.11 Lady Dr. Farida Sardar and PW.12 Muhammad Siddiq, S.I.

5. It may be stated that the story given by the prosecution witnesses about enticement has been totally disbelieved by the trial Court. It has also disbelieved PW.9 complainant Nazir on the point of Zina. It appears that the learned trial Judge convicted the two appellants simply, because they were not able to prove Nikahnama (Ex. DD). This is a case in which the entire prosecution evidence was disbelieved and the conviction was based purely on the basis of the statement of the accused /appellants or the weakness of the defence. The following extract from the judgment of the trial Court is reproduced hereunder to show that the conviction is purely based on the failure of the defence to prove the valid Nikah:‑ "From the facts of the case it appears that in fact Mst. Saleem daughter of Rehmat Ali who is a major woman, eloped with Mohammad Yousaf accused some 3/4 months prior to the lodging of F .I. R. Rebmat Ali might be reporting the matter to police and during this period Mst. Saleem had filed a writ petition before the Hon'ble High Court, but the S.H.O. stated that he was not going to arrest as no case till that time was registered against them. Subsequently the parents of the said girl in order to safeguard anticipated plea of marriage with co‑accused Mohammad Yousaf, concocted the story of Mst. Saleem being previously married with Nazir complainant and got the case registered at the instance of Nazir, complainant, who claimed that he was married to Mst. Saleem about two years prior to the lodging of F.I.R. and similarly Mohammad Yousaf accused in order to cover the plea of this marriage, relied upon by Nazir complainant got this forged Nikahnama prepared with the connivance of Nikah Khawan, Nikah Registrar and the Secretary, Union Council. The F.I.R. in this case is sufficiently delayed one and appears to be registered after deliberation but this does not affect the merits of the case, because Mohammad Yousaf and Mst. Saleem have admitted that they are cohabiting with each other and their alleged Nikah dated 25‑11‑1983 has not been proved at all. Had there been simple plea of their legally wedded with each other, it could be made a basis of abduction and Zina as approved in the cited Authorities. But in the present case both the accuse have based their plea on the basis of registered Nikahnama dated 25‑11‑1983. which is Ex. DD and the authenticity and genuineness of this document has not been proved. Thus it can safely be concluded that both the accused, mentioned above, are living in adultery and they are guilty of the commission of Zina with each other. As they are not legally wedded on the basis of Nikahnama dated 25‑11‑1983. The result of the above discussion is that both the accused are held guilty of the commission of zina with each other and thus they are liable under section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance. 1979."

6. We are unable to agree with the learned trial Judge that the appellants could have been convicted in spite of the fact that each and every prosecution witness on the question of enticement and Zina has been disbelieved. Ordinarily assertion of a major woman and man that they have been living as husband and wife would be sufficient to establish the factum of their being legally married unless there is anything to the contrary on the record. The learned trial Judge has not stated that there was anything on the record to suggest that the plea of the appellants was inconsistent with the prosecution evidence or with the circumstances brought on the record.

7. PW.9 Nazir had claimed that appellant Mst. Saleem was his legally married wife. Some witnesses were examined to prove his Nikah with her, but all those witnesses were disbelieved and this is what the trial Court held about the claim of PW.9 Nazir:‑ "The minute perusal of the entire prosecution evidence brings me to the conclusion that prosecution has not able to establish with any degree of confidence its case beyond any reasonable doubt; that Mst. Saleem accused was married with Nazir complainant PW.9. The story of this previous Nikah appears to have been fabricated."

8. About the charge of abduction /enticement the trial Court held:‑ "All these things clearly show that nobody had seen the accused person going together and the charge of abduction and enticing away has also not been proved against all the accused. It appears that Mst. Saleem eloped with co‑accused Mohammad Yousaf and went alongwith him on her own accord and the case is not that of enticing away or the abduction but of elopement." It would thus appear that there was no evidence against the appellants to prove that they had committed Zina with each other. Mst. Saleem has been treated to be unmarried before the incident according to the findings of the trial Court. It was also held that simple plea of the appellants that "they were legally wedded with each other would be valid defence against the charge of abduction and Zina as approved in the cited authorities". (see the portion underlined in the quotation in para 5). The authorities referred to by the learned trial Judge are P L D 1982 F S C 42, P L D 1982 FSC 197, PLD 1984 FSC 184, PLD 1983 FSC 9, PLD 1983 FSC 483 and PLD 1983 FSC 397.

10. The first case cited above is Arif Hussain and Mst. Azra Parveen v. The State P L D 1982 F S C 42). In this case it has been held that when the man and woman admit that they are wedded to each other as husband and wife then it is not necessary to produce two witnesses to prove the Nikah nor any documentary evidence is required to prove the factum of Nikah as a defence plea to the charge of Zina. It has nowhere been held that the existence or otherwise of the factum of Nikah depends upon proof of Nikahnama. In Muhammad Iqbal v. The State P L D 1983 FSC 9 it has been held by a Division Bench of this Court that admission of a girl that she is married with the appellant should be treated as enough proof of valid marriage as a defence plea to the charge of Zina. In this case there was a Nikahnama also, which was alleged to be fabricated by the appellant. In spite of this the Division Bench of this Court held in the above case that the proof of Nikahnama was not necessary in the wake of admission of girl who had attained puberty, that she was legally married wife of the appellant. In the last case cited above i.e. Muhammad Ramzan v. Muhammad Saeed and three others PLD 1983 FSC 483 it was held by a Division Bench of this Court:‑ "To establish marriage, reliance on or proof of Nikahnama not necessary‑‑Mere statement of accused persons claiming husband and wife was sufficient to establish Nikah and relationship of husband and wife."

11. So far as the other three cases referred to by the learned trial Judge namely PLD 1984 FSC 184, PLD 1982 FSC 197 and PLD 193 ESC 397 are concerned, we did not find any such cases reported in the law reports. The learned trial Judge has not cared to give correct citations of the cases relied upon. However, so far as the three decisions, discussed above, are concerned, they do not make it obligatory upon the appellants to produce any documentary evidence regarding their Nikah. The learned trial Judge without following the intent underlying the above decisions went on to observe:‑ "I am respectfully bound by the law cited by the learned defence counsel but would again dare to differ with the arguments of the learned defence counsel. In the present case both the accused have taken the plea of their legally wedded with each other on the basis of written Nikahnama dated 25‑11‑1983."

12. According to the learned trial Judge, if the accused persons (man and woman) take simple plea that they are husband and wife, then it would be valid defence against charge of Zina, but if the plea is based on written 'Nikahnama' and they fail to prove due execution of Nikahnama, then they shall be held guilty of Zina, in spite of the fact that all prosecution witnesses regarding abduction enticement/Zina, are found to be false. The finding of the trial Judge, at the face of it, is untenable and not consistent with the law laid down in the three cases discussed above. The burden of proving defence plea never shifts upon the accused, until the prosecution has succeeded in proving a prima facie case. If the entire prosecution evidence on the charges levelled against an accused, is disbelieved, then it will be case of no evidence and the accused shall be entitled to acquittal under section 265‑K, Cr.P.C. without being called upon to enter on defence.

13. Consequently, we allow this appeal, set aside conviction and sentences and acquit the appellants of the offences they have been charged with. Appellant Muhammad Yousaf is in prison. He shall be released forthwith if not required in any other case. Appellant Mst. Saleem is present on bail. Her bail bond stands discharged. M.Y.H./375/F.S.C. Appeal allowed.