DOST MUHAMMAD Versus STATE

1. NASIM HASAN SHAH, J. ‑‑This is an appeal against the judgment of the Federal Shariat Court dated 1‑6‑1987.

2. The facts, which form the background, are that Muhammad Shaft alongwith other members of his family were sleeping in their house between the night of 22/23‑10‑1980. At about mid‑night, Dost Muhammad, Allah Bachaya, Elahi Bakhsh, Allah Diwaya, Ganmoon and ten other persons entered the house duly armed with sticks and forcibly abducted Mst.Nazir Mai, sister of Muhammad Shaft complainant. The inmates of the house tried to prevent the abduction of Mst.Nazir Mai but the assailants caused them injuries and in this incident Muhammad Shafi, his father Ghulam Rasool and his brother‑in‑law Faiz Bakhsh were injured. According to Muhammad Shafi, his mother also received fist blows from the assailants.

3. All the 15 persons were tried under Sections 452, 325, 148, 149, P.P.C. and Sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, by the Additional Sessions Judge, Muzaffargarh for abduction and rape of Mst.Nazir Mai, sister of Muhammad Shafi and causing injuries to the inmates of the house. The learned trial Court by his order dated 27‑1‑1987 convicted Dost Muhammad, Allah Bachaya, Allah Wasaya, Ganmoon and Allah Dawaya under Section 11 of the Ordinance and sentenced them to five years R.I. each and a fine of Rs.5,000 plus 10 stripes or in default of payment of fine six months R.I. He also convicted Dost Muhammad and Allah Bachaya under Section 10(3) of the Ordinance and sentenced them to five years R.I. each plus 10 stripes and a fine of Rs.5,000 or in default of fine six months R.I. The sentences awarded to Dost Muhammad and Allah Bachaya under Section 11 were ordered to run concurrently with those under Section 10(3).

4. On appeal, the Federal Shariat Court upheld the conviction of five appellants under Section 11 of the Ordinance but it enhanced the sentence to life imprisonment as the mandatory sentence for abduction, under Section 11 of the Ordinance, is life imprisonment. The conviction of Dost Muhammad under Section 10(3) of the Ordinance was also upheld and he was sentenced to 5 years' R.I. plus 30 stripes. Allah Bachaya was acquitted under Section 10(3) of the Ordinance. Since the sentence of the appellants was enhanced by the Federal Shariat Court, hence this appeal.

5. Mr. Muhammad Munir Paracha has taken us through the relevant evidence and his main contention is that Dost Muhammad could not be convicted under Section 11 as Mst. Nazir Mai was the wife of Dost Muhammad having been married to him and that he had even filed a suit of restitution of conjugal rights which was decreed by the Judge Family Court. The ex parte decree passed by the Judge Family Court dated 3‑9‑1980 was also produced in evidence. This contention was also raised before the Federal Shariat Court but was rejected with the following observations:‑

6. "In the circumstances, it was for Dost Muhammad appellant to have proved a valid marriage having taken place between him and Mst.Nazir Mai but neither any Nikahnama nor any oral evidence about such Nikah was produced by him in support of his stand. No doubt, he has placed a certified copy of the decree sheet and the last order of the Family Court in his suit for restitution of conjugal rights of the Family Court dated 3‑9‑1980 showing an ex parte decree in his favour but the order in question being without any reason and not based on any evidence, the same will not be of any help in the absence of any proof of Nikah between Dost Muhammad and 61st.Nazir Mai particularly so when it is an ex parte decision and the opposite party had remained completely ignorant of the same."

7. Mr. Muhammad Munir Paracha submitted that the learned Federal Shariat Court had erred in not relying upon the decree of the Family Court Judge. He submits that the decree for restitution of conjugal rights implies that the Judge had found that a valid marriage existed between the parties and it was only for that reason that a decree for restitution of conjugal rights was passed; as such a decree could only be awarded if the Court was satisfied that the parties were indeed husband and wife. In this connection, he also relied upon the observations of this Court in Muhammad Azam v. Muhammad lqbal and others P L D 1984 S C 95 at page 149, namely:‑

8. "Strictly speaking the judgment of the trial Judge under the criminal law will not have any determinative effect on the decision before the Family Court if it is to be on the same issue and between the same parties except to the extent it is permissible to refer to it under the law as declared by this Court in the case of Malik Din and another. However, it cannot be said regarding vice versa situation and thus the judgment by the Family Trial Judge would have direct effect on the outcome in the criminal trial if the question of valid Nikah, which already stands decided by the Family Court, is also involved before the criminal Court. Therefore, the decision of the Family Court in this behalf will have precedence."

9. Mr. Muhammad Rafiq Butt, learned counsel for the State has submitted that as the copy of Nikahnama has not been submitted, no proof of Nikah between Dost Muhammad and Mst.Nazir Mai existed and hence the learned Federal Shariat Court was justified in not giving effect to the decree of the restitution of conjugal rights.

10. In our view, the observations of this Court in Muhammad Azam's case P L D 1984 S C.95 have not been properly construed by the Federal Shariat Court because it has been held therein that the judgment of the Family Court would have direct effect on the outcome of the criminal trial if the question of status is decided by the Family Court. There is force in the submission that the Family Court could not grant a decree for restitution of conjugal rights without coming to the conclusion that a valid Nikah* between the parties existed. However, in this regard as neither the pleadings of the parties nor the documents on which they were relying have been placed on the record we cannot say with certitude whether the Judge Family Court had a copy of the Nikahnama of the parties before him and the decree passed by him was based on it. In these circumstances, the appropriate course appears to be to remand the case to the trial Judge where these matters can be fully examined by summoning the record of the Family Court Judge and other relevant documents.

11. The result is that this appeal is allowed, the judgment of the learned trial Court dated 27‑1‑1987 and that of the Federal Shariat Court dated 1‑6‑1987 are set aside and the case remanded to the learned trial Court for trial afresh.

12. M.I. /D‑23/S Case remanded.