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Criminal Appeals Nos. 52/1 and 86/1 of 1986, decided on 22nd April, 1986.

‑‑‑Ss. 10(2) & 16‑‑Penal Code (XLV of 1860). Sa.468 & 471‑‑Evidence‑ Nikahnama produced by accused, prior in date to Nikahnama produced by the complainant, husband of lady accused‑‑Lady accused admitting being wife of co‑accused in another case‑‑Affidavit filed with bail application also admitting same position‑‑Nikahnama produced by accused, purported to be bearing thumb‑impression of lady accused‑‑Opinion of Finger Print Expert, not elicited‑‑Marginal witnesses not examined by Trial Court‑‑Accused not examined under S.340(2), Cr.P.C.‑‑Trial Court, held, had not followed principles laid down by superior Courts‑ Case was, therefore, remanded for proper recording of evidence.

Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95 ref.

Hafiz S.A. Rehman for Appellant (in Criminal Appeal No.52/1 of 1986).

M. Bilal for Appellant (in Criminal Appeal No. 88/1 of 1988).

Zafarullah Salari for the State.

Date of hearing: 22nd April, 1988.

The above two appellants have challenged the same judgment of the learned Sessions Judge Bhakkar, dated 10‑2‑1986 whereby they were convicted and sentenced as under:‑

(1) Atta Muhammad appellant:‑

(1) under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to R.I. for six years, fifteen stripes and fine of Ra.3.000 or in default of payment of fine to further undergo R.I. for nine months.

(ii) under section 10(2) of the said Ordinance to R.I. for seven years, ten stripes and fine of Rs.5,000 or in default of payment of fine of further undergo R.I. for six months.

(iii) under section 468, P.P.C. to R.I. for five years and fine of Ra.2,000 or in default of payment of fine to further undergo R.I. for six months.

(iv) under section 471, P.P.C. to R.I. for five years and fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for six months.

All the substantive sentences were directed to run consecutively.

(2) Mst. Shamim Akhtar appellant:‑--

under section 10(2) of the said Ordinance to R.I. for seven years, ten stripes and fine of Rs.5.000 or in default of payment of fine to further undergo R.I. for six months.

They have filed separate appeals against the same judgment hence, these were heard together.

2. The complaint was lodged by P.W. 1 Ghulam Yasin, who claimed to be the husband of appellant Mst. Shamim Akhtar. He has also produced Nikahnama to prove that this appellant was his legally wedded wife and that she was enticed away by Atta Muhammad appellant with the help of 8 other co‑accused, who were acquitted by the trial Court by the same judgment. The plea of Atta Muhammad on the contrary was that Mst. Shamim Akhtar is his legally wedded wife and that her father P.W. 4 Talib Hussain had himself given her hand to him in the year 1981 i.e much before the lodging of the report. He has also produced Nikahnama which is, dated 20‑1‑1981. The Nikahnama produced by Ghulam Yasin is, dated 12‑1‑1982. It is also in evidence that when Mst. Shamim Akhtar left his house she was pregnant and that thereafter during the period she lived with Atta Muhammad appellant, she gave birth to two children. According to complainant Ghulam Yasin both these children were born as a result of the illicit connection between the two appellants.

3. From the perusal of the record we find that the learned trial Court has not recorded full evidence in respect of Nikahnama produced by Atta Muhammad appellant as Exh. D.1. On the record there is statement of Mat. Shamim Akhtar Exh. D/10 which she gave under section 342, Cr.P.C. in another case filed by her alleged husband Ghulam Yasin in which she admitted that she was wife of Atta Muhammad. In the present case she had also filed a bail application which was supported by an affidavit (Exh. D/3) in which she stated that she was legally wedded wife of appellant Atta Muhammad. The bail order passed by the learned trial judge also shows that appellant Mat. Shamim Akhtar had, personally appeared before the trial judge and admitted that she was legally wedded wife of appellant, Atta Muhammad.

4. The original Nikahnama; which has been produced by appellant Atta Muhammad, bears clear thumb impression purported to be of Mat. Shamim Akhtar. The learned trial judge should have sent to is Nikahnama (Exh. D/17 this Exhibit No: had inadvertently been put on the photostat copy instead of putting it on the original Nikahnamas alongwith the specimen of thumb impression of Mst. Shamim which were taken in the A Court for the same purpose, to the Finger Print Expert for comparison. The trial Court should also have examined the witnesses of Nikah mentioned in the Nikahnama (Exh. D/1). We, therefore feel that the learned trial judge has not followed the dictum laid down in this behalf by the Supreme Court in the case of Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95.

5. In view of the above circumstances the learned counsel for the parties agreed that the case should be remanded to the trial Court to enable the parties to produce witnesses. In respect of their respective claims and the learned trial Court way call any witness which it may think just and proper in order to arrive at a definite conclusion about the genuineness of either of the two Nikahnamas. The appellants to be examined under section 340(2), Cr.P.C.

6. Consequently the conviction and sentences are set aside and the case is remanded to the trial Court for fresh decision after allowing the parties to produce further evidence in respect of their respective claims. The trial Court is further directed that the case should be disposed of within three months. The appellants are in prison. They shall continue to be in prison, subject, however, to the discretion of the trial Court under section 497, Cr.P.C. which it shall be at liberty to exercise keeping in view the circumstances of the case.

S. A. Case remanded.

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