1998 PLP 257 (MLD)

To question No. 10 he replied: "It is incorrect. In fact Mst. Kausar Parveen was major at the time of her Nikah with me." To question No. 12 he replied:‑‑ "Mst. Kausar Parveen contracted marriage with me with her free consent and against the wishes of her father. Due to this annoyance the father of Mst. Kausar Parveen got registered this false case against me and others. " In his defence he produced the documents as mentioned in para. No.3 of this judgment. Earlier to that Muhammad Munir (P.W.8), Investigation Officer, had exhibited two more documents, Exhs.PD/1 and PD/2 while deposing in the following words:‑‑ "After due investigation I found Shahid Hussain and Tahir Jahangir innocent kept their names in column No.2 of the challan leaving them at the mercy of Court and challaned Wajid Hussain accused. Accused Wajid Hussain produced before me copy of Nikahnamas Exhs.PD/1 and PD/2 which I secured into possession vide recovery memo. Exh.PD mentioned above." To certain suggestion about Nikahnama he replied:‑‑ "The Nikah performed by Allah Ditta, Nikah Khawan whose statement was recorded by me in my zimini dated 14‑1‑1993. I have not recorded the statements of witnesses mentioned in Nikahnama under section 151, Cr.P.C. separately. It is correct that I have not given any findings regarding Nikahnama Exh.PD/1 and Exh.PD/2 if the same is forged one. " Now in the presence of this Nikahnama Exhs.PD/1 and PD/2 and the circumstances of non‑recording of statement under section 161, Cr.P.C. of the Nikah Khawan Allah Ditta and no mention of his name in the calendar of P.Ws. and no investigation carried about the correctness of this Nikahnama fires back upon the story of the prosecution specially when these Exhs. PD/1 and PD/2 are fully corroborated by the documents exhibited in defence by the appellant. Exh.DB is an attested copy of application dated 13‑5‑1993 addressed to A.C., City Rawalpindi and signed by both the complainant Muhammad Lateef (P W.6) and appellant praying therein that since the parties had patched up and since Mst. Kausar Parveen was daughter of complainant as well as wife of the appellant and was kept at Darul Aman w.e.f. 6‑5‑1993, she may be permitted to proceed with them to their home. On the back of application is an order dated 13‑5‑1993 by the authority signed by the three which includes Mst. Kausar Parveen and to the effect that she wants to go with the appellant and her father has no objection. Resultantly such permission was granted. Exh.DC is an attested copy of a bail order dated 20‑3‑1993 passed by the Additional Sessions Judge, Jhelum para. Nos.6 and 7 of the said order are relevant and are reproduced as under:‑‑ "(6) Keeping in view the arguments advanced by the learned counsel for the parties and having perused the record, I am of the considered view that there is nothing on the file to suggest that the abductee was minor at the time of occurrence. Photo copy of Nikahnama dated 9‑1‑1993 has been produced and the original is available on the record. The case was registered on 10‑1‑1993 meaning thereby that at the time of registration of the case, Nikah has already been solemnised in‑between the parties. Copy of Nikahnama has been produced. The complainant who is present in Court has filed his affidavit duly sworn by him from which it appears that the parties have compromised and the P. Ws. are not going to support the prosecution version. (7) The matter requires further inquiry. I, therefore, allow bail to the petitioner in the sum of Rs.25,000 one surety in the like amount to satisfaction of this Court." Exh.DD is an attested copy of an affidavit sworn in by Nazar Muhammad s/o Fazal Din Khokhar (P.W.7) and is to the effect that he had no seen on 9‑1‑1993 that Mst. Kausar Parveen was going with the appellant and that he had not given any statement under section 161, Cr.P.C. at Police Station Pind Dadan Khan. This affidavit was filed before the Court of Sessions Judge, Jhelum to facilitate the grant of bail in favour of the appellant. Exh.DE is an affidavit sworn in by the complainant father of the alleged abductee filed in the same Court and for the identical purpose and to the effect that the appellant had not abducted his daughter and that police had wrongly lodged F.I.R. Application Mark‑A is a complaint filed by Mst. Kausar Parveen before A.C. and Ilaqa Magistrate, Pind Dadan Khan and to the effect that she is adult and intends to marry with her own free‑will but her father and brother intend to get her married with some one else without her consent. On her refusal she was beaten and an attempt to murder her was being threatened, hence the complaint under sections 107, 150, Cr.P.C. read with 500, 501, 506/34, P.P.C. It was filed through Shafqat Hussain Choudhri, Advocate, Pind Dadan Khan with an order of the authority to file the complaint as she was showing apprehension and no offence had taken place as yet. Deed of Divorce dated 2‑3‑1993 is Marked B as against Mst. Kausar parveen and is signed by her complainant father as witness No.3. It appears, prima facie, that this deed became a point of compromise generating all other affidavits and documents to facilitate the grant of bail. In the presence of these documents it was a bounden duty of the Trial Court to deal with this case with utmost care. Principles enunciated at placentum BB, CC and DD cited as PLD 1984 SC 1995 are exactly applicable on such like cases which are quoted verbatim:‑‑ "(BB) Far‑reaching consequences of wrong findings of fact on plea of marriage, either way can well be visualized. Verdict in the affirmative not only gives legitimacy to conjugal intimacy and the offsprings but; also, binds two persons in a solemn and pious bond which, in turn in our faith, creates rights and obligations of such permanent nature that the life in this World and Hereafter also are influenced. And similarly verdict in the negative amongst others, can have serious repercussions on the questions of legitimacy of conjugal, contact, liberty/life of the accused, the life of the offsprings, in addition to the social complications for the future of the concerned individuals. "(CC) Therefore, it is on account of the foregoing reasons that a very dedicated duty of recording, admission and appreciation of evidence falls on the two Courts of fact namely the trial Court and the Federal Shariat Court. (DD) It is thus all the more necessary for the two Courts below to make every effort to reach the mark of perfection on the questions relating to facts, regarding the plea of valid marriage. Mere surmises and casualness where cold logic should be the rule might, as would be presently demonstrated by examining the interaction of section 3 of Ordinance which gives it the overriding effect and section 5 of the Family Courts Act which gives exclusive jurisdiction to the family Courts on questions of marriage, prove harmful in so far as the working of this difficult branch of judicial administration is concerned. The apprehended erosion can, however, be checked if all necessary implications are kept in view. Then need it not say that the Trial Court had unfettered powers under section 540, Cr.P.C. to call for and examine the relevant persons as Court witnesses for safe dispensation of justice. Placentum Q of the case cited supra reads:‑‑ "And as also, subject to what the Federal Shariat Court itself observed in another case Muhammad Siddiqui and another v. The State (PLD 1983 FSC 173), that 'it is not disputed that under section 540, Cr.P.C. the Court is given unfettered powers to examine any person as a witness at any stage of any enquiry, trial or other proceedings.' And it may be added that it becomes obligatory for the Court to do so when it is essential for the just decision of the case, and the same was done by the Federal Shariat Court itself in the case of Din Muhammad v. The State (Criminal Appeal No.61/L of 1981, decided on 26‑1‑1982), which would be presently examined in another connection. "

7. In view of these circumstances of the case and appreciation of evidence, I had ordered for remanding back the case to the Trial Court to try the case de novo from the date on which 'prosecution had closed its side. A short order was passed on 15‑5‑1997. These are the reasons for the said short order. N.H.Q./1105/FSC Case remanded.