IZZAT KHAN and another vs THE STATE
This jail petition seeks leave to appeal against the judgment of the Federal Shariat Court whereby the petitioners were convicted under section 11 and section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to rigorous imprisonment. The core legal question concerns the sufficiency of evidence regarding the abduction of the victim and the establishment of a valid marriage through the custom of Swara without a formal Nikah. The Supreme Court held that the prosecution successfully proved the charge of abduction through credible statements of natural inmates and the abductee, and the admission of the accused, while noting that a customary practice like Swara does not constitute a valid marriage without a formal Nikah. The court laid down the principle that mere customary allocation in Swara does not legally dispense with the requirement of a regular Nikah to establish marital status.
- Does a customary practice like Swara constitute a valid marriage without a regular Nikah?
- Whether the uncorroborated admission of taking away an abductee under a claim of marriage suffices to prove abduction under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
' SARDAR MUHAMMAD RAZA KHAN, J.--- Izzat Khan and Saeed Khan through this jail petition seek leave to appeal from the judgment dated 442-2002 of Federal Shariat Court, whereby, they both stood convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to rigorous imprisonment for ten years. Saeed Khan, in addition thereto, is also convicted under section 10(3)of the Ordinance and sentenced to concurrent imprisonment for ten years. Benefit of section 382-B, Cr.P.C. Was also extended.
2. The prosecution story as unfolded by Sardar Bahadur complainant is to the effect that on 20-6- 2000 there was marriage ceremony of his brother Sher Azam. That Barat had arrived from Karachi with which his sister's daughter Mst. Shameen had also come to their house. On 4-7-2000, the complainant went to his fields while his cousin Imtiaz along with the women-folk was present. He received information that Izzat Khan, Saeed Khan and Naseer Khan, sons of Zardullah, his co- villagers, had come to their house and had abducted his niece Mst. Shameen. The real sister, named Mst. Aimun Nisa, of the complainant happened to be the wife of Izzat Khan aforesaid. She too was present at home when the occurrence took place and had left the house along with the accused. The motive for the occurrence was to the effect that Mst. Shameen had once been promised to be given in marriage to accused Saeed Khan but subsequently, her parents refused.
3. It has been abundantly proved through the statements of the natural inmates of the house as well as Mst. Shameen, the abductee, that the two petitioners Izzat Khan and Saeed Khan are securely involved in the commission of abduction. It is worth to be noticed that the real sister of complainant is married to Izzat Khan and thus no charge of such gravity could be brought by the complainant unless true.
4. Saeed Khan in his statement under section 342, Cr.P.C. Has admitted having taken away Mst.
Shameen on the plea that she was his wife because of having been given to her in Swara in connection with the murder of his paternal-uncle where the paternal-uncle of the abductee was charged. That it was in consequence of a settlement. This clear admission of abduction further proves the commission of Zina as well, if one refers to the nature of claim alleged by Saeed Khan.
There is not an iota of evidence to prove the existence of any Nikah between Saeed Khan and Mst.
Shameen. Even if given in Swara, which is not proved, a girl does not become the wife of any unless a regular Nikah is performed. No such Nikah is at all proved. In the circumstances, the prosecution has sufficiently proved its case of abduction against Saeed Khan. There being no force in the petition, it is hereby dismissed and leave to appeal refused.