1985 P Cr (PLP)

Date of hearing: 7th March, 1985. FAKHRUDDIN H. SHAIKH, J.‑--‑The appellant alongwith his parents, namely, Rehmat Ali and Mst. Rashida Khurshid were sent up for trial before the Additional Sessions Judge, D.G. Khan for offences under sections 10, 11 and 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned Judge by his judgment, dated 30th July, 1984 acquitted Rehmat Ali and Mst. Rashida Khurshid, but convicted Safdar Ali of offence under section 10(2) of the said Ordinance and sentenced him to suffer R.1 for a period of 5 years plus fine of Rs.2,000 or in default to undergo R.I. for 6 months. In addition, he was also to suffer whipping 15 stripes. Appellant Safdar Ali has challenged the above conviction and sentence in this appeal. Originally the appeal was preferred through jail at the main Registry of the Court at Islamabad and numbered as Jail Criminal Appeal No.138/I of 1984. It was transferred latter to Lahore Registry and renumbered as Criminal Appeal No.144/L of 1984.

2. The case of the prosecution is that Mst. Aisha daughter of Karim Bakhsh complainant, used to live with her father is Basti Malana, Tehsil D.G. Khan. The appellant and his parents, Rehmat Ali and Mst. Rashida Khurshid lived in their neighbourhood. The two parties were on visiting terms. According to Karim Bakhsh, his daughter Mst. Aisha was married with one Allah Wasaya in exchange for with a niece of Allah Wasaya to be married with Nawaz, brother of Mst. Aisha. From the prosecution evidence it is not clear as to when this marriage had taken place. According to complainant Karim Bakhsh, this marriage had taken place one and a half months prior to this incident, but it was not registered according to Family Laws Ordinance, Siddique Shah is alleged to have performed this Nikah in presence of witnesses Piroo and Faiz Muhammad.

3. It is alleged that two months before lodging of the F.I.R., appellant Safdar All entered the house of the complainant Karim Bakhsh during the night and abducted Mst. Aisha by force. She was put in a car and taken to Moro in the Province of Sind. It is further alleged that she was compelled to contract second marriage with the appellant Safdar Ali at Moro. This alleged second Nikah was registered by a Nikah Registrar. Mst. Aisha was also compelled, according to the prosecution, to swear an affidavit before a Magistrate at Moro where it was stated that she was not married earlier with anyone and that she has contracted marriage with appellant Safdar Ali of her own free will. There is no dispute about the age of the lady which was 18/19 years at the time of the incident.

4. The F.I.R. of this case was lodged by complainant Karim Bakhsh on 13th May, 1982, in which he stated that his daughter Aisha was abducted by the appellant two months earlier. He did not lodge report immediately because he had been trying to get back the custody of his daughter from Safdar Ali. During the investigation, the appellant was arrested alongwith his parents Rehmat Ali and Mst. Rashida Khurshid. It was alleged that the parents of the appellant had facilitated the abduction of Mst. Aisha and had further abetted the offence of Zina, which Safdar Ali had been committing with Mst. Aisha after her abduction.

5. The case of, the appellant before the trial Court was that he had not abducted Mst. Aisha, but the latter had legally married with him. He had paid Rs.40,000 to her father Karim Bakhsh as consideration for this marriage and that Karim Bakhsh had accepted money from some body else also for the hand of Mst. Aisha earlier, therefore, at the instance of Karim Bakhsh himself, the marriage of Aisha with the appellant was held in Sind, as a face saving device for the complainant. The appellant has also produced the affidavit of Mst. Aisha as Exh. D.A. and the Nikahnama as Exh.D.B. to prove his marriage with Mst. Aisha.

6. In support of the prosecution case, the main witnesses are P.W.4 complainant Karim Bakhsh, P.W.5 Mst. Aisha and P.W.9 Sayyid Muhammad Siddique. Other witnesses are formal. The most conspicuous omission in the prosecution case is the evidence of Allah Wasaya, the alleged first husband of Mst. Aisha. He was called as a witness. But the prosecution gave statement in writing to the trial Court that Allah Wasaya is given up because he was won over by the opposite party. P.W.4 Karim Bakhsh has given the same story as narrated above. But in his cross‑examination, he stated that Mst. Aisha was unmarried. He contradicted his own statement in examination‑in‑chief according to which she had been given in marriage to Allah Wasaya. According to him, Mst. Aisha was given to Allah Wasaya in marriage but Rukhsati had not taken place. The niece of Allah Wasaya who was agreed to be given in exchange to Muhammad Nawaz son of the complainant, has admittedly not yet been formally married with Muhammad Nawaz. It is also admitted that the so‑called Nikah of Mst. Aisha with Allah Wasaya was unregistered.

7. P.W. Mst. Aisha who has given her age as 19 years has stated that the appellant Safdar Ali has entered her house during the night and removed her forcibly by gagging her mouth by his hand and put her in a car and took her to Moro where she was compelled to marry him and that thereafter the appellant continued committing sexual intercourse with her until she was recovered by the police during the investigation. She has also stated that she was married earlier to Allah Wasaya although Rukhsati had not taken place.

8. P.W.9 Sayyid Muhammad Siddique has been produced to prove the alleged first Nikah of Mst. Aisha with Allah Wasaya. This witness claims that he had performed the Nikah of Mst. Aisha with Allah Wasaya at village Faqirwala and that on the same day he had also performed the Nikah of the niece of Allah Wasaya with Muhammad Nawaz, the son of complainant Karim Bakhsh. He further stated that Karim Bakhsh had acted as Wakil of the Nikah while Piroo and Faiz Muhammad were witnesses of this Nikah. Now this statement is quite inconsistent with the evidence of the complainant, according to whom the niece of Allah Wasaya has not yet been given to Muhammad Nawaz in marriage. Again according to the complainant the Nikah of Allah Wasaya with Mst. Aisha was performed in village Chah Mandarwala but according to witness Muhammad Siddique it was performed at Faqirwala. His statement is full o contradictions and inconsistencies. In examination‑in‑chief he states that he had performed two Nikahs i.e. of Allah Wasaya with Mst. Aisha and Muhammad Nawaz with the niece of Allah Wasaya. This is quite contrary to what complainant Karim Bakhsh has stated. Again in examination‑in chief he states that both Nikah i.e. of Allah Wasaya and Muhammad: Nawaz were performed at village Faqirwala but in cross‑examination he states that the Nikah of Muhammad Nawaz was performed at D.G. KhanI and not at Chah Faqirwala. His evidence is, therefore, unreliable.

9. The factum of first Nikah will be the main factor for determining the culpability of the appellant. It is proved that Mst. Aisha had contracted a valid marriage with Allah Wasaya, then the act of the appellant in contracting second marriage with the lady, would amount to an offence. The main witness who could have proved the disputed first Nikah is Muhammad Siddique, but it is surprising that during the investigation his statement was recorded by the police after two years of the first Nikah, that would come to about 17 or 18 months after the lodging of the F.I.R. Again the witnesses of the Nikah, namely, Faiz Muhammad and Piroo have also not been examined. Although Faiz Muhammad is stated to have died, but Piroo was available, still he way not examined. It is, therefore, doubtful if the alleged first Nikah of Mst. Aisha had at all taken place with Allah Wasaya. This doubt is confirmed by the conduct of Allah Wasaya who has not claimed to be the husband of this woman. He was summoned as a witness by the trial Court. He' was present in the Court on relevant date, but was given up by the prosecution on the ground that he was won over by the appellant. From the above statement of the prosecutor it can be clearly inferred that Allah Wasaya does not claim to be the husband of Mst. Aisha. Allah Wasaya has not taken any action against the appellant for abducting his so‑called wife Mst. Aisha. nor Mst. Aisha has till this day filed any suit for dissolution of her marriage with appellant Safdar Ali.

10. Even if it is assumed that Mst. Aisha had contracted valid Nikah with Allah Wasaya, the question still remains whether appellant Safdar Ali was aware of this Nikah and contracted second Nikah in spite of such knowledge. There is nothing on record to suggest that the appellant was aware of any prior Nikah of Mst. Aisha with anyone. The first Nikah was not registered. According to the prosecution case itself, even Rukhsati had not taken place. The fact that the alleged first marriage was a Wata Sata transaction is also disproved because till this day the niece of Allah Wasaya has not been given to the son of the complainant. All these circumstances not only disprove the factum of the disputed first Nikah but raise a presumption in favour of the appellant that he had no knowledge of any such Nikah. Under such circumstances, it cannot be said that the Nikah of appellant with Mst. Aisha was illegal or that the appellant has been guilty of committing rape upon the lady.

11. The allegation that Mst. Aisha was forcibly removed from heel house during the night is also unbelievable. According to Mst. Aisha she was sleeping with her younger brother on the same cot at the time when the appellant had caught her by her pig‑tail and put his hand on her mouth and removed her from the cot. The story is unbelievable. Her hands were quite free which she could have used to awaken his brother. Again she stated that in spite of being gagged, she had cried but none had woke up. This is also unbelievable. Mst. Aisha had several sisters and brothers. All were sleeping in the same house at the time of the alleged incident. Hence it was impossible for the appellant to have forcibly removed her from her house without being noticed or caught at the spot by the inmates of the house. The conduct of Mst. Aisha shows that she had voluntarily eloped with the appellant and married with him later in the town of Moro in Sind. She remained with the appellant for about 7 months. She was also conceived from the appellant and was pregnant for 5 months at the time she was recovered by the police during the investigation. During this period she had sufficient opportunity to get herself released from the custody of appellant if the latter was holding her against her wishes. Her conduct and the circumstances brought on record clearly prove that she had voluntarily left her house with the appellant and contracted marriage with him.

12. Mr. Muhammad Younus, learned counsel for the appellant, has in this connection referred to a Full Bench decision of this Court in Abdus Sattar v. Muhammad Ashraf P L D 1982 F S C

157. In this case, the facts of which were similar with the facts of the present case, it was held that the accused could not be held guilty of offences under section 10 or 11 or 16 of Ordinance VII of 1979. The relevant observations of Malik Ghulam Ali, J. who delivered the Full Bench judgment are reproduced hereunder:‑

13. The above observations are fully attracted to the facts of the present case. Even Mr. Nusraullah learned counsel for the State, has conceded that if the factum of first Nikah of Mst. Aisha with Allah Wasaya is not proved, then the appellant cannot be held guilty of any offence. It has already been held that the so‑called first Nikah with Allah Wasaya, has not only not been proved, but it has been categorically disproved by the conduct of Allah Wasaya himself in refusing to claim Mst. Aisha as his wife. Consequently, we hold that no offence has been brought home to the appellant: The appeal is, therefore, allowed and the appellant is acquitted. He is n bail His bail bond stands discharged. H.A.K. Appeal accepted.