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Criminal Appeal No.99-K of 1986, decided on 17th March, 1987.

---S.10--Offence of Zina--Accused taking defence that abductee was his lawfully-wedded-wife--Trial Court failing to summon Nikahkhawan--Statements of defence witnesses not discredited in cross-examination--Even character of these witnesses not impeached- Statement of abductee supporting fact that she might have entered into Nikah with accused--Conviction and sentence set aside in circumstances.

Muhammad Azam v. The State P L D 1984 S C 95 rel.

---S.5--Nikah--Proof--Registration of Nikah, held, not necessary proof of Nikah--Nikah, in Muslim Law, could be performed by offer and acceptance in presence of witnesses--Non-registration, only attracted penalty under S.5(4) of Ordinance.

Muhammad Ayub Khanzada for Appellant.

Niaz Ahmad for the State.

Date of hearing: 17th March, 1987.

.--The IXth Additional Sessions Judge, East Karachi, convicted the present appellant under Section 10(3) of the Offence of Zing (Enforcement of Hudood) Ordinance, 1979 and sentenced him to 15 years' R.I. with whipping numbering 30 stripes. He came up in appeal originally on 27-3-1985 when the case was sent back, in the light of the observations made by the Supreme Court, in the case Muhammad Azam v. The State P L D 1984 S C 95, as the defence taken was that alleged abductee was the lawfully-wedded-wife of the appellant. The case has now came back to us with the only improvement that the court summoned Ashiq Ali, a Clerk of the office of the Nikah Registrar and C.W.2 Ah;:ui hauf, an expert of Finger Print Bureau, Karachi. The Hand Writing Expert stated that he could not compare the thumb impression of Mst. Khadija as the same was not in a good shape. Ashiq Ali C.W.1 stated that the 'Nikahnama' as produced was not registered and even there was no Nikah Registrar by the name of Muhammad Alam authorised to perform Nikah.

2. We have heard the learned counsel for the parties. It is contended on behalf of the appellant that the age of the girl is 16/17 years according to Mst.Lal Mat , P.W.1 the mother of the victim. Her nikah is proved by the three witnesses against whom ' nothing has been said in the cross-examination. The learned counsel for the State contends that as the nikah was not registered and was not found in the register presented by Ashiq Ali and the thumb impressions are also not found to be that of Mst. Khadija the nikah is not proved.

3. After hearing the learned counsel we find that undoubtedly the trial court has not taken pains to go into the matter deeply as it should and has not summoned Nikah Registrar but this case has for be decided here and cannot be again postponed. The statement of C.W.1 Ashiq Ali has no consequence as Muhammad Alam is not Nikahl Registrar but a 'Nikahkhawan'. The statement of defence witnesses on the other hand do not stand discarded for any thing in the cross-examination. Even the character of these witnesses has not been impeached. Rather, the statement of Mst. Khadija that she was taken to the house of Muhammad Ilyas and he was present with two other persons including one old man itself supports the fact that she might have entered into nikah. It is to be noted that Ilyas is one of the witnesses of the nikah. Further the statement of Mst. Lal Mati, P.W.1 also does not inspire any confidence as she stated that she,1 her husband and the male children went to the feast but left their daughter aged 16/17 at home.

4. The registration of nikah is not necessarily the proof of nikah. According to Section 5 of the Muslim Family Laws ordinance, 1961 the 'Nikah' takes place and it is then to be registered. In Muslim law 'nikah' can be performed by offer and acceptance in the presence of witnesses. The non-registration only attracts a penalty under Section 5(4). We thus find no error in the nikah itself. The result is that this appeal is allowed, the conviction and sentences are set aside and it is directed that the appellant shall be released forthwith unless he is wanted in any other case.

M. Y. H./341/F.Sh.C. Appeal accepted.

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