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(Against the judgment and order dated 27-11-1983, of the Federal Shariat Court, Islamabad, in Criminal Appeal No. 140/1 of 1983).

(a) Constitution of Pakistan (1973)

-- Art. 203-F-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(2)-Offense of Zina-Plea of valid NikahLeave to appeal granted to examine whether plea of valid Nikah by accused was not male fide and law laid down in Muhammad Azam v. Muhammad 1qbal P L D 1984 S C 95 was not attracted to case.

(b) Offence of Zina(Enforcement of Hudood) Ordinance (VII of 1979)

-- S. 10(2)-Criminal Procedure Code (V of 1898), S. 540-Offence of Zina-Plea of valid Nikah-Two Nikahnama available on record concerning same lady-Quality of evidence not satisfactory when particularly other authentic evidence was not taken note of on question of Nikah with regard to findings recorded-Defence plea of valid Nikah was, therefore, not mala fide to imply summary rejection-Trial Court if had undertaken to decide issue of validity of marriage then full inquiry should have been made into conflicting claims with regard to marriage invoking powers of Court under S. 540, Cr. P. C. or better still if family case on subject was pending its decision should have been awaited for a reasonable time-Such course having not been adopted by trial Court, held, a material defect remained in trial-Judgment of convictions recorded by trial Court and affirmed by Federal Shariat Court were set aside and a retrial was ordered in terms of decision of Supreme Court in Muhammad Azam v. Muhammad 1qbal P L D 1984 S C 95-Accused persons were, however, admitted to bail.

Muhammad Azam v. Muhammad 1qbal and others P L D 1984 S C 9 affirmed.

Syed Asghar Hussain Shah Sabzwarl, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate-on-Record for Appellants.

K. E. Bhatti, Advocate-on-Record for the State.

Date of hearing : 21st May, 1985.

SHAFIUR RAHMAN, J.-Leave to appeal was granted to the two convict under section 10(2) of Ordinance VIII of 1979 to examine whether the,: plea of a valid Nikab was not mala fide and the law laid down is Muhammad Azam v. Muhammad Iqbal and others (PLD19845C95) was not attracted to the case.

On the 25th of March, 1982 Muhammad Sharif son of Ghulatr Muhammad (P. W. 2) lodged a report at Police Station Dunya Pur, Tehsil and District Multan. He complained that he was married to Mst. Maqsood Mai, the appellant, in 1978 ; had a male child from her and was living with her in Chak No. 372, W. P. District Multan when about 14 and 15 days before the report she alongwith the child was abducted by Shakir Muhammad, the other appellant. On coming to know of it, he immediately in the company of his father approached Shakir Muhammad , the appellant, who promised to return Mst. Maqsood Mai but failed to keep his promise whereupon he had to lodge the report with the police During the investigation, Mst. Maqsood Mai and the child were recovered from the custody and the house of Shakir Muhammad, appellant. They pleaded that they were lawfully married husband and wife the marriage having taken place on 26-10-1981. The complainant claimed marriage on 7-11-1978. Both produced copies of Nikahnama in respect of their claim.

The trial Court did take note of the crucial point involved in the case, namely, as to who is the actual husband of Mst. Maqsood Mai, appellant, and proceeded to decide it. A decision was given on this crucial point without examining either of the Nikahkhwan, the witness to the Nikah or the original Nikahnama itself. It was done on the basis of prosecution evidence coming from the mouth of Ghulam Farid (P. W. 4) the brother of Maqsood Mai and Allah Wasayi (P. W. 5) her mother who stated about a proper and valid marriage with Sb trif and not with Shakir, appellant. The trial Court convicted the two appellants under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced them to rigorous imprisonment for a period of seven years and a fine of Rs. 1,000 each or in default six months' R. I. and in addition ten stripes.

On appeal the Federal Shariat Court maintained their conviction but reduced the sentence of rigorous imprisonment from seven years to five years keeping the other sentences intact.

In view of the question which is to be examined in the appeal extensive examination of the prosecution evidence with a view to determine its sufficiency or otherwise on the criminal charge is not necessary. Some peculiar features of the case are that it appears from the record itself that the parties are closely related. Shakir Muhammad, appellant claims to be the son of maternal uncle of Maqsood Mai. Sharif, complainant claims to be the son of Maqsood Mai's maternal-aunt. Apart from the validity of the two marriage, the question of legitimacy of the child also gets indirectly adjudicated by the decision of the criminal case. It also came on the record that a Family Court was seized of the suit filed by Mst. Maqsood Mai (319/1982 pending in the Court of Senior Civil Judge Family Court, Multan) against Sharif complainant with regard to the jactitation of the marriage or in the alternative dissolution of marriage. We are not aware of its latest position but it appears that the criminal Court totally ignored its pendency or result with regard to identical allegations forthcoming in the form of defence or prosecution version in the criminal trial. The plea of the appellant from the very beginning was that Mst. Maqsood Mai was married to Sardar Muhammad, a brother of Shakir Muhammad when she was abducted by Sharif and a Punchayat intervened whose decision was not honoured by Sharil whereupon a complaint was made by Mst. Maqsood Mai to Martial Law Authorities with respect to her abduction and wrongful confinement by Sharif during inquiries of which police registered a case against Shakir Muhammad instead of registering the case against Muhammad Sharif,, the complainant. From the bail order passed on 19-4-1982 i.e. within a month of the institution of the criminal case by Muhammad Sharif, we find two Nikahnamas on the record concerning the same lady. In this background of events, we consider that the defence plea was not male fide to imply summary rejection. If the trial Court had undertaken to decide the issue of validity of marriage then as indicated in Azam's case full inquiry should have been made into the conflicting claims with regard to the marriage invoking the powers of the Court under section 540, Cr. P. C. or better still if the family case on the subject was pending its decision should have been awaited for a reasonable time. That course having not been adopted, a material defect remains in the trial.

We are not satisfied on the quality of evidence particularly when the other authentic evidence has not been taken note of on the question of Nikah, with regard to the findings recorded. It is, therefore, a fit case, in the light of decision given by this Court in Azam's case, in which the decision merits interference. Hence the appeal is allowed and the judgments of conviction recorded by the trial Court and affirmed by the Federal Shariat Court are set aside and a re-trial is ordered in the terms of decision of this Court in the case of Azam. The appellants are admitted to bail in the sum of Rs. 10,000 each with two sureties of the like amount to the satisfaction of the trial Court which in the case of Mst. Maqsood Mai shall be conditional on her getting family suit referred to revived or in case it is not possible for any reason, to constitute another and intimate the triall Court to that effect.

Case remanded.

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