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Criminal Revision No. 913 of 1976, decided on 1st February 1977.

---S. 439-Conviction, propriety of-Conviction of petitioner under Ss. 494 & 498, I'. P. C. based mainly on oral testimony-No docu mentary evidence in existence to prove marriage between complain ant and alleged wife and birth or death of child born out of alleged wedlock-Conviction and sentence, held, not proper and set aside, in circumstances.-Penal Code (XLV of 1860), Ss. 494 & 498.

M. A. Bajwa for Petitioner.

Rashid Awan for the State.

Date of hearing : Ist February 1977.

Nusrat son of Sher and Mst. Izzat Bibi were both convicted under section 494, P. P. C. and each of them was sentenced to one year rigorous imprisonment. Nusrat was also convicted under section 498, P. P. C. and was sentenced to one year rigorous imprisonment. The sentences of Imprisonment in his case were ordered to run concurrently vide judgment gated the 15th of January 1974 of the Magistrate Section 30, Jhang. On appeal the convictions of Nusrat and Mst. Izzat Bibi were maintained. however, the sentence of Nusrat was reduced under section 498, P. P. C. 'rum one year rigorous imprisonment to nine months' rigorous imprisonment and under section 494, P. P. C. from one year rigorous imprisonment to pine months' rigorous imprisonment plus fine of Rs. 200 or in default to undergo one month simple imprisonment The sentences of imprisonment were to run concurrently. In the case of Mst. Izzat Bibi her conviction was maintained under section 494, P. P. C. but her sentence of one year R. I. was suspended on her executing a bond in the sum of Rs. 5,000 with one surety before the Probation Officer on or before the 23rd of September 1976. This is a revision petition filed only by Nusrat.

2. The brief facts of the case are that Gut Sher Khan complainant, who has since died, filed a complaint against the petitioner and Mst. Izzat Bibi n 1973 and the Illaqa Magistrate, on his complaint, summoned both of hem to face the charge under section 494/498, P. P. C. The allegation was hat the complainant was married to .Mat. Izzat Bibi somewhere in 1968 end out of the wedlock a child had also been born but it died; nevertheless Both of them lived as husband and wife for about four years until one year prior to the filing of the complaint Mst. Izzat Bibi went to the house of her parents and did not return thereafter. The complainant tried to get her back as she was his wife, but in the meantime Nusrat petitioner made an application under section 552. Cr. P. C. before the District Magistrate, Jhang, and after obtaining the warrants for restoration of Mst. Izzat Bibi got her recovered and kept her with him while he committed adultery with her until later ors they were married on the 9th of February 1972. The complainant appeared as a witness himself in this case and this Magistrate had examined five other P. Ws. in this connections. Nusrat petitioner and Mst. Izzat Bibi in their statements before the trial Court denied the allegation. Mst. Izzat Bibi stated that she bad never been married to the complainant. The petitioner she admitted that they were married on the 9th of February 1972 and produced Nikahnama Exh. D. A. They also produced Khan D. W. 1, who deposed that they had been married for the past 2/3 years. The main argument which is being raised before me is this that if the complainant had married Mst. Izzat Bibi in 1968, as it was stated by him in the complaint, then under the Muslim Family Laws Ordinance, 1961, he was required to get the Nikah registered at that time otherwise it was a criminal offence. The reasoning is that no such documentry evidence existed and that in the absence of such documentary evidence, the mere oral evidence should have not been believed in respect of the existence of marriage between Mst. Izzat Bibi and the complainant. It was next submitted that as it was contended by the complainant that a child had been born out of their wedlock who subsequently died, then the complainant should have produced some documentary evidence in respect of the registration of his birth or death. No such evidence w8s placed on record. Finally, it was argued that in any case while the case was before the Additional Sessions Judge in appeal, the complainant had died and after his death even if be had been the former husband of Mst. Izzat Bibi, she was lawfully wedded wife and her marriage was regularized with Nusrat petitioner, because according to Exh. D. A. she was the wife of Nusrat petitioner under the Nikahnama dated the 9th of February 1972 I have heard the learned counsel. It is indeed correct that under the Muslim Family Laws Ordinance, 1961, the marriage between the two parties was to be registered at the Union Council, and if it was not registered it was an offence. No such registration has taken place in present case Thus, there is no documentary evidence in existence that Mst. Izzat Bibi was married to the complainant. Again, no documentary evidence was produced in respect of the birth of the child or the death of the child born out of the alleged wedlock between Mst. Izzat Bibi and the complainant. It is now established that the complainant himself is dead, who claimed himself to be the former husband of Mst. Izzat Bibi. Her marriage was solemnized with Nusrat petitioner on the 9th of February 1972 and it is recorded in the Judgment that they both have two minor children born out of the wedlock. The conviction and sentence of the petitioner and Mst. Izzat Bibi were based mainly on oral testimony in the instant case. In my view, there is force in the arguments of the learned counsel. As no documentary evidence had been placed on record to establish that. Mst. Izzat Bibi was married to the, complainant, in the circumstances, the conviction as well as sentences awarded to Nusrat petitioner were not proper and these are accordingly set aside. The result is that the revision petition of the petitioner is accepted and he is acquitted. The petitioner is on bail by the order of this Court. His bail bonds stand discharged. If the fine has been realized froth the petitioner, it should be refunded to him.

Revision allowed

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