MUHAMMAD MANSHA Versus THE STATE
ABDUR REHMAN KHAN KAIF, J. --Muhammad Mansha son of Nawab allas Chiragh, r/o Didapur, Tehsil anti District Multan, Chiragh Din son of Miran Bakhsh, Mst. Sharifan Bibi wife of Chiragh and Mst. Bashiran daughter of Chiragh, all residents\ of Chak No. 60/G. B. , within the jurisdiction of Police Station, Jaranwala: were tried by the learned Additional Sessions Judge, Faisalabad, in a case registered vide F.I.R. No. 66, dated 4-3-1986, under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and section 494, P. P. C . The learned trial Court vide the impugned judgment dated 15-10-1987 acquitted Chiragh Din and Mst. Sharifan Bibi, parents of Mst. Bashiran accused, of the charge under section 16 of the said Ordinance, but by the same judgment he found guilty the remaining two accused, namely, Muhammad Mansha and Mst. Bashiran for offences punishable under sections 494, P.P. C. and 10(2) of the said Ordinance. Each of them on conviction was sentenced to two years' R.I. under section 494, P.P.C. Each of them waja further convicted under section 10(2) of the said Ordinance and sentenced to five years R.I., whipping numbering five stripes and a fine of rupees five thousand. In default of payment of fine, each of the convicts was to undergo further R.I. for a period of three months.
2. Feeling aggrieved both the mentioned convicts namely, Muhammad Manaha son of Nawab and Mst. Bashiran have preferred the present joint appeal wherein they have challenged their conviction and sentences through the above-mentioned judgment.
3. The facts of the case briefly stated are that on 4-3-1986 one Khadim Ali son of Fazal Muhammad made a statement before Muhammad Abbas, S.I., of P..S. Jaranwala, wherein he stated that he was married to Mst. Bashiran appellant in the year 1971 and out of the wedlock, a daughter, named Mst. Shahnaz was born to them. Meanwhile, the complainant was convicted in a case of abduction and was sentenced to five years' R.I. Taking advantage of his absence from the house, Muhammad Manaha, appellant, developed illicit relations with his wife, Mst. Bashiran, appellant, and subsequently they solemnized their marriage with each other by performing a Nikah ceremony during the subsistance of her marriage with the complainant. It was further stated that during all this period, 2/3 children were born to the appellants and when the complainant came out of Jail after the expiry of his sentence, he demanded the return of his wife and in that connection a punchayat was also arranged. In the said punchayat Mat.Bashiran, appellant, declared that she had contracted a valid marriage with Muhammad Mansha, appellant. The complainant demanded the ornaments and other valuables given to Mst. Bashiran, appellant, but she flatly refused to return the same. He alleged that his wife; Mat. Bashiran, was indulging in Zina with Muhammad Mansha, appellant, without being validly married to each other during the subsistance of her marriage with the complainant. The complaint so made was recorded by Muhammad Abbas, S.I., and was sent to the police station, where a formal case was registered vide F.I.R. Exh. P. A. /1. After the usual investigation a complete challan was submitted for trial against the accused.
4. The prosecution has produced as many as ten witnesses in order to substantiate the allegations. Abdur Rahim (P.W.1) recorded the formal F.I.R. (Exh. P.A./1) on the receipt of complaint from Muhammad Abbas, S.I., while Eshanul Haq (P.W.2) who is Chairman Union Council No. - 35, deposed that he issued a certificate (Exh. P. B.) to the effect that no notice of any Talaqnama issued by Khadim Ali was received in the Union Council. Muhammad Ilyas (P.W.3) is an attesting witness of the said certificate (Exh. P.B.) while Muhammad Ishaq (P.W.4) is the person who performed the Nikah ceremony between Mst. Bashiran, appellant, and Khadim Ali, complainant, on 70-7-1971. The copy of the Nikahnama is Exh.P.C. Irshad Hussain son of Khair Din (P.W. 5) is a recovery witness of memo (Exh. P.D.) of the photostat copy of the Nikahnama (Exh. P.C./1), while Khadim Ali (P.W.6) is the complainant in the case. According to him, his marriage with Mst. Bashiran, appellant, took place about 15 years before recording his statement. He deposed that he was subsequently involved in a case of abduction in which case he was convicted and was sentenced to R.I. for five years. According to him during that period of his detention in jail, the appellants developed illicit relations with each other and Chiragh Din and Mst. Sharifan Bibi, parents of Mst. Bashiran, appellant, arranged the marriage of Mst. Bashiran, appellant, with Muhammad Mansha accused, in his absence without obtaining any divorce deed and in the meanwhile 2/3 children were born to the appellants as a result of their illicit co-habitation. According to him, on his return from Jail, he convened a punchayat in order to get back his wife. The punchayat was attended by the accused as well, but he failed in .his efforts and was compelled to lodge the report in the police station on 4-3-1986.
5. Abid Ali (P.W.7) and Rashid Ahmad (P.W.8) have deposed that they were present in the punchayat which was summoned at the instant of the complainant, but the complainant failed in his efforts as the two appellants stated that they had married each other in the presence of Chiragh Din, father of Mst. Bashiran. Molvi Rahmatullah (P.W.9) is the person who solemnized the Nikah ceremony of the appellants on 19-4-1979. According to him, he performed the Nikah between the appellants on the assurance of Chiragh Din, father of Mst. Bashiran, that she was free to marry Muhammad Mansha, appellant. Muhammad Abbas, S.I. (P.W.10) recorded the statement of complainant (Exh. P.A.) on the basis of which a case was subsequently registered in the police station. He took up the investigation of the case, recorded the statements of P.Ws. arrested the accused and after the completion of the investigation, submitted a complete challan for trial against the accused.
6. When examined under section 342, Cr.P.C. both the appellants have frankly stated that they had married each other after Mst. Bashiran was verbally divorced by Khadim Ali, complainant. According to Muhammad Mansha, appellant, Khadim Ali, complainant was interested only in the custody of his daughter Mst. Shahnaz, but since the appellants refused to deliver her custody to him, he lodged a report in the police station against them. Muhammad Mansha, appellant, had declined to make statement on oath, but the statement of Mst. Bashiran, appellant, was recorded on oath as provided under section 340(2), Cr.P.C. In her statement, she reiterated the same version by stating that she had been divorced by the complainant, Khadim Ali. According to her, she was taken by her parents to Sahiwal where the complainant was residing and it was requested for her maintenance, but he refused to allow her and to live with him and pronounced Talaq three times and as such having been divorced by him, she contracted the second marriage with Muhammad Mansha, appellant. To a similar effect is the statement of Chiragh (acquitted accused) on oath.
7. The accused examined Nazir Ahmad son of Abdul Aziz (D.W.1) and Muhammad Rafique son of Khushi Muhammad (D.W.2) in their defence. Nazir Ahmed (D.W.1) deposed that some 10/11 years ago, Khadim Ali, complainant, contracted a second marriage with one Mst. Parveen and started living with her at Sahiwal. Mst. Bashiran approached him at Sahiwal for maintenance, but she was turned out by him telling her that he had already divorced her. The witness deposed that some ten years back he alongwith Chiragh Din, Muhammad Rafique and Mst. Bashiran, appellant, went to Sahiwal and asked the complainant to allow Mst. Bashiran to live with him, but he declined to do so and said that he had divorced Mst. Bashiran. According to him, after the said incident, Mst. Bashiran, accused, was given in marriage to Muhammad Mansha, appellant, by her father. Similarly, Muhammad Rafique (D.W.2) has stated that the complainant had abducted a girl from Mohallah Islampura, Jaranwala City. and taken her to Sahiwal where he started living with her. He alongwith Nazir, Mst. Bashiran, Chiragh Din and Mst. Sharifan went to 1lhiwaf and approached Khadim Ali, complainant, to keep Mst. Bashiran with him but he refused to do so and divorced Mst. Bashiran verbally in his presence.
8. We have, heard the learned counsel for the parties and have gone through the record with their assistance.
9. It is an admitted fact that Mst. Bashiran, appellant, was married to the complainant in the year 1971. It is also not disputed that the complainant subsequently remained involved in an abduction and Zina case and on conviction in that case, he was sentenced to five years' R.I. There is no denying the fact that both the appellants have entered into a marriage in the year 1979 because, according to the stand taken in defence, the complainant having abducted another girl, was living with her in Sahiwal and when he was approached, he pronounced oral divorce and thus divorced Mst. Bashiran. It is, therefore, to be seen whether the appellants had entered into a marriage during the subsisting marriage between the complainant and Mst. Bashiran and were rightly head guilty of the offences mentioned above.
Molvi Rahmatullah (P. W.9) has clearly deposed that he had solemnized the marriage between the two appellants in the presence of Chiragh Din, father of Mst. Bashiran, vide Nikahnama, mark "A", dated 19-4-1979. In their statements under section 342, Cr.P.C. both the appellants have not denied the allegations. They have pleaded that after obtaining a verbal divorce from the complainant, they contracted a marriage with each other in the presence of Chiragh Din, father of Mst. Bashiran, appellant. The complainant had, however, declined the suggestion that he had divorced Mst. Bashiran. As already mentioned above the accused have examined Nazir Ahmed (D.W.1) and Muhammad Rafique (D.W.2) in their defence, showing that the complainant had refused to maintain Mst. Bashiran and had verbally divorced her in their presence. It has been mentioned in his statement by Khadim Ali, complainant (P.W.6) that before the punchayat he had demanded the return ofgornaments, clothes and other articles given to Mst. Bashiran at the time of her marriage with him. To a similar effect is the statement of Abid Ali (P.W.7) who has stated that father of Mst. Bashiran was asked to return ornaments to the complainant, but he refused to do so. The complainant has also admitted in his cross-examination that he had filed a petition for the custody of his daughter, but he never made any effort throughout this long period to file a suit for restitution of conjugal rights against Mst. Bashiran appellant, or to take any other step challenging the marriage between the appellants. The admitted position is that the marriage between the two appellants took place on 19-4-1979, but the present proceedings were initiated by the complainant on 4-3-1986 by making a report in the police station. No proper explanation for such inordinate delay in lodging the report and taking proceedings had been furnished. All the above facts clearly indicate that the stand taken about the oral divorce by the appellant had some truth in it. It is in the statement of the complainant that during the trial of the abduction case, he remained on bail for some period and it has further been admitted by him that he was released from jail in the end of 1984 after the expiry of his sentence in the abduction case, but even after his release, he remained silent and took no steps to show that the marriage between him and Mst. Bashiran, appellant, still subsisted. It was after a period of about two years of his release when he lodged the report in the police station. It is also established on record that he had married another girl and was living with her.
10. The facts and circumstances mentioned above showed that the plea raised by the appellants in the defence was quite plausible From the very conduct of the complainant, it becomes clear that he was more interested in the return of ornaments and other articles given to Mst. Bashiran appellant, at the time of their marriage rather than in her return to his house. It is not understandable as to why he allowed Mst. Bashiran to live with another person as his wife for such a long period, giving birth to several children. The very fact that the marriage between the appellants took place in the presence of Chiragh Din, father of Mst. Bashiran, and with his consent gives a clear indication that her previous marriage had already been dissolved.
All the above factors taken together make the prosecution case highly doubtful. From the evidence on the record it has not been conclusively proved that the marriage between Mst. Bashiran, appellant, and the complainant subsisted at the time of her marriage with Muhammad Mansha, appellant. On consideration of the entire facts on the record, we are thus of the view that the prosecution has not been able to establish the charge against the appellants beyond any reasonable doubt. The allegations being not free of doubt, the benefit of such doubt shall have to be extended to the appellants.)
For the reasons stated above, the appeal of Muhammad Mansha son of Nawab and Mst. Bashiran daughter of Chiragh Din, is allowed. The conviction and sentences of both the appellants are set aside and they are acquitted of the charge. The appellants are on bail. Their bail bonds shall stand discharged.
M.Y.H./386/F.Sh. Appeal allowed.