MUHAMMAD KHALID Versus State

SHAHID HAMEED DAR, J.--- This criminal appeal arises from the judgment dated 4.9.2010, whereby the learned Sessions Judge, Nankana Sahib convicted Muhammad Khalid (appellant) under section 376, P.P.C. and sentenced him to rigorous imprisonment for ten years and fine of Rs.20,000/- or in default thereof to undergo simple imprisonment for one year, with benefit of section 382-B, Cr.P.C., on conclusion of his trial in case-FIR No.249/08, dated 27.7.2008, registered for offences under sections 365-B, 376, P.P.C. at police station City Nankana Sahib. He was, nonetheless, acquitted of the charge under section 365-B, P.P.C. His co-accused and trial-mates, Inayat, Ameen, Abid Hussain, Muhammad Younas and Ghulam Rasool were acquitted of all the charges on extension of benefit of doubt.

2. Precisely, the prosecution story as narrated by Shaukat Ali (complainant/P.W.1) in the FIR (Exh.PA/1) is that his daughter Mst. Muqaddas Bibi was abducted and taken to some unknown place by Khalid (appellant), Younas Bhatti (since acquitted), Yaqoob Bhatti (since dead), Abid Bhatti (since acquitted) and three unknown persons at 11.00 a.m. on 27.7.2008; he learnt about the incident at 12.00 noon. He presented a written application (Exh.PA) against the abductors before the police, on the basis of which Rehmat Ali 376/MHC registered FIR (Exh.PA/1), at 7.00 p.m., the same day.

He (P.W.1) moved another written application (Exh.PB) on 31.7.2008, whereby he also named Muhammad Ameen and Inayat as accused with the contention that they had admitted their guilt as to abduction of his daughter before Rehmat Ali (P.W.3) and Muhammad Yaseen PW (not produced) and promised to return her, if they would not involve them in any case.

3. On completion of investigation, report under section 173, Cr.P.C. was submitted before the learned trial court for trial of the accused, Khalid (appellant), Inayat, Ameen, Abid Hussain, Muhammad Younas and Ghulam Rasool (since acquitted), who pleaded not guilty and claimed a trial, when indicted.

4. The prosecution produced fourteen witnesses, namely, Shaukat Ali (complainant/P.W.1), Mst.Muqaddas Bibi (P.W.2), Rehmat Ali (P.W.3), Irfan Gul 662/C (P.W.4), Mumtaz Ajmal ASI (P.W.5), Habib Ullah Khan ASI (P.W.6), Dr. Najma Parveen WMO (P.W.7), Muhammad Ramzan 653/C (P.W.8), Allah Ditta ASI (P.W.9), Saeed Ahmad SI (P.W.10), Dr.Uzma Yasmin (P. W.11), Rehmat Ali 376/MHC (P.W.12), Jahangir Ali ASI/IO (P.W.13) and Mujahid Raza SHO (P.W.14) to prove the charge framed and closed its case on 16.8.2010 by tendering report of the Chemical Examiner (Exh.PL).

5. Thereafter, Khalid (appellant) and his acquitted co-accused were examined under section 342, Cr.P.C., whereby they proclaimed their absolute innocence in the matter. The appellant admitted in his statement that Mst. Muqaddas Bibi (P.W.2) had voluntarily accompanied him to Multan, where she gave birth to his daughter. While answering the question, why this case against him and why the PWs deposed against him, he stated as under:-

"Muqadas Bibi contracted Nikah with me with her own free will without consent of her parents. Due to this reason parents of Muqadas Bibi got registered false fictitious and frivolous case against me and my close relatives just to blackmail me. Muqadas Bibi under the pressure of her parents asked me to compensate her parents by paying them money, on my refusal she deposed against me against the real facts. All the PWs are inter se related."

His acquitted co-accused also adopted the same contention. They declined to appear as their own witnesses under section 340(2), Cr.P.C. They, except for the appellant, opted not to lead any defence evidence. The appellant tendered attested copies of Nikahnama (Exh.DD) with the certificate of Union Council (Exh.DD/1), Crl. Org. No.529/W-2008 (Exh.DE) with orders of this court, dated 19.9.2008, 18.9.2008 and 8.9.2008 (Exh.DE/1, Exh.DE/2 and Exh.DE/3, respectively), the application to record statement under section 164, Cr.P.C. (Exh.DF) with statement of Mst. Muqaddas Bibi recorded thereunder (Exh.DF/1) and that of Writ Petition No.9966/2008 (Exh.DG) with an order of this court (Exh.DG/1) in defence, before he closed his evidence. Learned trial court held him guilty of the charge and sentenced him to the mentioned terms through the impugned judgment, but acquitted his co-accused, named as above.

6. Learned counsel for the appellant has submitted that a false case has been thrust upon the appellant by the prosecution, as Mst. Muqaddas Bibi (P.W.2) being sui-juris had contracted Nikah with him of her free will and accord, whereafter she lived with him as his wife and gave birth to a full term female baby through C-section at a hospital at Multan; the appellant's Nikah with Mst. Muqaddas Bibi (P.W.2), much before the day of the alleged occurrence, has categorically been admitted by her father Shaukat Ali (complainant/P.W.1), who deposed in his testimony that her daughter lived with Muhammad Khalid accused for five months as his wife, before he got this case registered against him; the delivery of a baby by her in the month of October 2008 has herself been admitted by Mst. Muqaddas Bibi before Dr. Najma Parveen (P.W.7), who medically examined her on 24.12.2008 at DHQ Hospital, Nankana Sahib, which only meant that the examinee consummated her marriage with the accused/appellant about five/six months before her alleged abduction on 27.7.2008; the Nikahnama (Exh.DD) showing marriage between the appellant and the alleged victim (P.W.2) on 31.7.2008 might have been prepared by the spouses out of fear, as they had no documentary proof of their marriage previously, although they lived as husband and wife for months, being satisfied of their marital status inter se; even if it be believed that the appellant had married Mst. Muqaddas Bibi (P.W.2), when she carried pregnancy of about five/six months, no foul could be found with it, as she produced a child from the lineage of the appellant, whom she chose to become her husband; relied on Manzoor Hussain v. Zahoor Ahmed and 4 others (1992 SCMR 1191), Abdul Majid Khan v. Mst. Anwar Begum alias Anwar Bibi (PLD 1989 SC 362) and Mst. Sakina and others v. The State (PLD 1981 FSC 320).

7. On the other hand, learned counsel for the complainant has vociferously argued that the appellant has committed a beastly act, as he forcibly subjected a minor daughter, aged 13/14, of the complainant (P.W.1) to sexual intercourse for a long time and to legitimize his roguery, he fabricated a fake Nikahnama (Exh.DD), but birth of a female child by Mst. Muqaddas Bibi about three months thereafter unfurled satanic designs of the conspiracy, hatched up by the appellant; the ocular account rendered by Mst. Muqaddas Bibi (P.W.2) and Rehmat Ali (P.W.3) is directly corroborated by the medical evidence, tendered by Mst. Najma Parveen WMO (P.W.7) and Dr. Uzma Yasmin, Gynecologist (P.W.11), beside the evidence of Shaukat Ali (complainant/P.W.1) and Allah Ditta ASI/IO (P.W.9); the impugned judgment ingrained all essential elements of being rationale, cogent and well-reasoned, hence, it may be sustained at the cost of the appellant's appeal.

8. Learned Deputy Prosecutor General Punjab looked little enthusiastic about the arguments, raised by the learned counsel for the complainant, as he perplexedly thought, how could the child of a married couple, though having been born in a mind-bending situation, be considered a bastard baby; he, however, termed it a morality shattering offence, committed by the appellant, which might jolt the edifice of public ethics and badly tarnish very fabric of the society as a whole, so he concluded that the appellant may not be shown any leniency and he must face consequences of the wrong done.

9. Learned counsel for the parties have been heard to their satisfaction and relevant record has minutely been gone into with their intelligible assistance.

It has turned out to be a mindboggling prosecution case, as the alleged incident of abduction of Mst. Muqaddas Bibi (P.W.2), real daughter of Shaukat Ali (complainant/P.W.1) did not appear to have taken place at all. The complainant, though, alleged in his written application (Exh.PA), which formed basis for registration of FIR (Exh.PA/1), that her daughter had been abducted by Khalid (appellant) and three of his acquitted co-accused, namely, Younas Bhatti, Yaqoob Bhatti, Abid Bhatti along with three unknown others, at 11.00 a.m. on 27.7.2008 and he learnt about this incident at 12.00 noon, the same day, yet, he contradicted himself by contending in his testimony that his daughter had been living with Khalid (appellant) for five months before he moved the application (Exh.PA) for registration of a case against him. He appeared to have doubly endorsed the said fact when he, almost in the same breath, contended that abduction of his daughter by the accused was in his knowledge, when he presented application (Exh.PA) before the police. He did not cite any witness in the FIR nor did he disclose the source, through which he learnt about his daughter's alleged abduction by the appellant and his acquitted co-accused. He vaguely contended in application (Exh.PA) that he knew about the abduction of his daughter by the accused at 12.00 noon, without hinting at the origin of his knowledge. In paragraph 2 of the application (Exh.PA), the date of occurrence has been interpolated to read as 27.7.2008, though, the overwritten date may still be visualized as 28.7.2008. A similar interpolation may also been seen at the end of the text thereof. His statement before the court is equally ambiguous as he did not name the source-person, who informed him about the abduction of his daughter by Khalid (appellant) and others. He frankly admitted that he did not witness the occurrence of abduction. Mst. Muqaddas Bibi (P.W.2) gave a clear signal about her months long association with the appellant before registration of FIR (Exh.PA/1) against him, when she contended that she appeared before a magistrate at Lahore about four/five months prior to registration of the case, so as to record her statement, most probably, as to having contracted marriage with Khalid (appellant). Though, she contended not to have made any statement then, yet, she repeatedly said that she did not make a noise, when she moved application before the magistrate for recording of her statement. She added that she made no noise as the accused had frightened her. She introduced a crucial utterance, when she deposed that after her Nikah with the accused, she went to the house of her parents. All of these bits, when put together, overwhelmingly revealed that she had gone to the magisterial court to state about her Nikah with the accused. The afore-noted contentions of father and daughter are in line inter se, to the effect that Mst. Muqaddas Bibi had been living with the accused for about five months, before registration of the FIR (Exh.PA/1), which only meant that the occurrence of abduction as alleged therein had not taken place at all. The proceedings qua registration of FIR may, thus, be termed as sham.

10. The complainant did not mention the age of his daughter as 13/14 in the application (Exh.PA), but he stated so in his testimony. Mst. Muqaddas Bibi (P.W.2) also told her age 13/14 years at the time of her abduction, as is manifest from her testimony. She was medically examined by Dr. Najma Parveen WMO (P.W.7) on 24.12.2008, who wrote her age 15/16 years with the description that the examinee gave history of delivery of a female baby on full term pregnancy, two months earlier, through C-section at Multan. She told the lady doctor that she had been recovered three days earlier, after her abduction on 27.7.2008. The woman medical officer found an old super pubic scar of operation at lower part of her abdomen. Dr. Uzma Yasmin (P.W.11), the gynecologist, examined Mst. Muqaddas Bibi on 31.12.2008, having been referred to her by the first woman medical officer (P.W.7). The examinee gave history of amenorrhoea, as about eight months from the date of her medical examination, which period included duration of pregnancy and puerperium. The gynecologist opined that the pregnancy of the examinee might have ended in an abortion or pre-term delivery of a baby. She did not, however, record her age. There exist a couple of other documents, including Nikahnama (Exh.DD), dated 31.7.2008, showing marriage of Khalid (appellant) with Mst. Muqaddas Bibi (P.W.2) and statement of Mst. Muqaddas Bibi under section 164, Cr.P.C. (Exh.DF/1), dated 13.8.2008, which revealed her age as nineteen (19) and twenty (20) years, respectively. Khalid (appellant) and Mst. Muqaddas Bibi (P.W.2) jointly instituted Writ Petition No.9966/2008 (Exh.DG) seeking for quashment of FIR No.249/2008 (supra), on the ground that they, having contracted marriage with each other, on 31.7.2008 lived as husband and wife and thus committed no offence. This constitutional petition was disposed of, vide order dated 11.8.2008 (Exh.DG/1), with a direction to respondent-investigating officer to record statement of the female-petitioner Mst. Muqaddas Bibi, and finalize the investigation strictly in accordance with law. As it did not so happen, therefore, both the petitioners filed Crl. Org. No.529-W/2008 (Exh.DE), which was disposed of vide order dated 19.9.2008 (Exh.DE/1), once again with the direction that investigating officer would record statement of Mst. Muqaddas Bibi and conclude the process of investigation in accordance with law, besides, the investigating officer was directed to get the period of pregnancy of the female-petitioner determined and also verify the factum of Nikah by keeping in mind, if duration of pregnancy was earlier than the time of performance of Nikah, an appropriate action under the law be taken.

11. The issue of minority or majority of Mst. Muqaddas Bibi is immensely crucial in the face of peculiar circumstances of the case and equally critical to determine, as to when Khalid (appellant) and Mst. Muqaddas Bibi had solemnized Nikah with each other, whether it was five months before the alleged abduction of Mst. Muqaddas Bibi (P.W.2), though verbally executed, or it happened on 31.7.2008. There is, however, another equally significant factor, which related to birth of a female baby by Mst. Muqaddas Bibi through C-section in a hospital at Multan, about two months before her medical examination by Dr. Najma Parveen WMO (P.W.7) on 24.12.2008, whom she gave the said history. Could the new-born be considered a legitimate child or otherwise, is a crucial question, to be answered herein. This child was in the custody of the appellant, as hesitantly submitted by his learned counsel and admitted in hiccups by him.

12. So far as the first question regarding age of Mst. Muqaddas Bibi is concerned, she appeared to have changed the stance according to the situation she found herself in. When she lived with Khalid (appellant), she showed herself a sui juris and told her age more than sixteen (16), which fact may be verified from her statement under section 164, Cr.P.C. (Exh.DF/1) that she made before a learned Magistrate at Lahore on 13.8.2008, wherein her age is mentioned as twenty (20) years. She mentioned herself nineteen (19) years of age, when she solemnized Nikah with the appellant on 31.7.2008. She did not protest at any stage of her Nikah with the accused and she consciously cooperated with him on each step. Her disposition in this regard may be appreciated from the fact that she, as per her own contention, went to the house of her parents after her Nikah with the accused, but she would not disclose it to anyone. If so, she has to be considered a grown-up and mature person, who easily understood the ins and outs of the step taken. She kept the secret to herself and remained tightlipped for months. She had been having sex with the accused-appellant at her residence, though, in her words, she was forced to do so, yet, she did not disclose it to her parents. She withheld her pregnancy from everyone around her. When she, joined by the accused, filed writ petition No.9966/2008 for quashment of the incumbent FIR, she did not agitate her minority and categorically contended that they, having married each other, had committed no offence. She also filed a contempt petition (Crl. Org. No.529-W/2008), whereby she reiterated the stance of her marriage with the accused/appellant and asked for an action against the investigating officer as he had not recorded her statement and cancelled the case.

13. It may safely be assumed from her testimony that offer and acceptance as husband and wife between her and the appellant had verbally taken place, about five months before 27.7.2008, i.e. the day of the alleged occurrence, as she had categorically contended that after her Nikah with the accused, she returned to the house of her parents, besides, she also deposed that four/five months prior to registration of the case, she appeared before a Magistrate at Lahore for recording her statement, which was, most probably, in the backdrop of her Nikah with the accused, otherwise, there was no earthly reason for her to make such an appearance. According to the prosecution case, the accused fabricated a Nikahnama showing his marriage with Mst. Muqaddas Bibi on 31.7.2008, four days after the alleged offence of abduction, whereafter they did not part till three days before she was medically examined by Dr. Najma Parveen WMO (P.W.7) on 24.12.2008, to whom she furnished the said information of her recovery on 21.12.2008. Her father's contention that she had been living with the accused for about five months, when he got registered the FIR (Exh.PA/1) against him, added strength to the idea that they lived as spouses much earlier than 31.7.2008, the day of preparation of the Nikahnama (Exh.DD). The Islamic rites do not necessarily envisage that a registered Nikahnama is the only proof of marriage between a Muslim male and female, rather it is the voluntary offer and acceptance, as husband and wife, between them, which would render them a married couple inter-se. Where a woman in good health or in sickness acknowledges a man as husband, the marriage is proved, provided that man assents while she is still living. On the touchstone of this principle, it could be held that Mst. Muqaddas Bibi and the appellant had married each other of their free will and accord at least five months before the above-said Nikahnama (Exh.DD) came into being. This Nikahnama might have been the product of their whimsical fear, as Mst.Muqaddas Bibi was on the family way then, without any clue to her parents in relation thereto. Even otherwise, marriage between the fornicators during pregnancy of the woman could not be held void and it would essentially be a valid marriage.

14. Mst. Muqaddas Bibi (P.W.2) went to places, Lahore, Bhai Phero, Multan, Rawalpindi and Sialkot, with the accused but told it to none that she was a minor and being exploited by him. She did not show herself a person of 13/14 years of age in her statement under section 161, Cr.P.C. (Exh.DB), recorded on 24.12.2008. She was confronted with this statement, when she testified in terms of being of the said age during her examination as P.W.2 and it revealed that she had not stated so therein. Bodily speaking, she gave history of amenorrhoea of about eight months to Dr. Uzma Yasmin, gynecologist (P.W.11), when she examined her on 31.12.2008. The complainant (P.W.1) and Mst. Muqaddas Bibi (P.W.2) mentioned it for the first time in their testimonies that she was aged about 13/14. The written application (Exh.PA) and statement under section 161, Cr.P.C. (Exh.DB) negated them both on the said score. She told her age 15/16 to Dr. Najma Parveen WMO (P.W.7) on 24.12.2008, five months after the alleged occurrence, which is yet another indication that she may not be less than sixteen (16), when her father reported her abduction to the police. The circumstances, enumerated hereinabove, easily established that Mst. Muqaddas Bibi was not 13/14, as belatedly claimed by the complainant or by herself before the trial court and she could easily be treated a sui-juris, having qualified the age of majority, on the fateful day.

15. The next question is about the legitimacy of the child, delivered by Mst. Muqaddas Bibi (P.W.2) at a hospital of Multan, about two months before her medical examination by Dr. Najma Parveen WMO (P.W.7) on 24.12.2008. If date (31.7.2008) of preparation of Nikahnama (Exh.DD) is taken into consideration, the birth of the child occurred three months thereafter, which gave a hint of their sexual relationship about five/six months before. It is a certain fact that she was pregnant on 31.7.2008. Regardless the controversy, though resolved precedingly, as to the appellant's verbal Nikah with Mst. Muqaddas Bibi about five months before the registration of FIR (Exh.PA/1), it could not be denied as per the Hanafi rule, the marriage between fornicators during pregnancy of a woman is valid. The presumption regarding Muslim marriage, in absence of direct proof has been raised and acted upon, in the following instances:-

(a) Prolonged and continuous cohabitation as husband and wife.

(b) The fact of acknowledgement by the man, of the paternity of the children born to the woman, provided all the conditions of a valid acknowledgement are fulfilled; or

(c) The fact of the acknowledgement by the man, of the woman, as his wife.

There is considerable case-law in support of the above propositions:-

Khajah Hidayat v. Rai Jan (1884) 3 M.I.A. 295, 317-318, 323 (marriage presumed); Muhammad Bauker v. Shurfoon-Nisa (1860) 8 MIA 136, 159 (marriage not presumed); Ashrufood Dowlah v. Ryder Hoseine (1866) 11 M.I.A. 94, 115 (marriage not presumed); Jariut-ool-Butool v. Hossinee Begum (1867) 11 M.I.A. 194, 209-210 (marriage not presumed); Maung Kyi v. Mushwe Baw (1929) 7 Rang. 777, 21 1.C.718, (29) A.R.341 (marriage presumed); Masitun-Nissa v. Pathani, (1904) 26 All. 295 (marriage not presumed); Abdul Halim v. Saadat Ali ('29) A.O. 126, 112 I.C. 596, (marriage presumed); Hasan Ali Mirja v. Nashratali Mirja (1935) 62 Cal.L.J. 428, 157 I.C. 1091, ('35) A.C.572 (extension of muta marriage presumed); Ma Khatoon v. Ma Mya (1936) 165, I.C. 232, ('36) A.R.448; Mohamed Amin v. Vakil Ahmad ('52) A.S.C.358.

Immabandi v. Mutsadi (1918) 45 I.A.73, 81-82, 45 Ca1.787, 889-890, 47 I.C. 513; Habibur Rahman v. Altaf Ali (1921) 48 1.A. 114, 120-121, 48 Cal. 856, 60 I.C.837, ('22) A.PC.159; Mt. Bashiran v. Muhammad Hussain (1941) 16 Luck 615, (1941) O.W.N.249, 193 I.C.161; (`41) A.O.284.

Let us have a look at the case-law, Abdul Majid Khan v. Mst. Anwar Begum alias Anwar Bibi (PLD 1989 SC 362) in relation to the above-referred presumptions.

The marriage between a woman, who conceived as a result of Zina by one person, with another is also valid during pregnancy, though there is restraint against the spouses in regard to having sexual intercourse before delivery, (Fathui Qadeer, Vol.3, pp.145). The dissenting views on the subject have been summed up by Syed Amir Ali, vide his Muhammadan Law, Vol.II, p.253 to 255, as follows:- "according to the Hanafis, it is lawful for a man to contract a marriage with a woman who is pregnant by fornication with somebody else, though connubial intercourse is forbidden until she is delivered. This is the opinion of Abu Hanifa and Muhammad. Abu Yusuf differs from them and holds such an union to be invalid, but "the Fatwa is with Abu Hanifa and Muhammad."

"The Shaf'eis, Malikis and Hanblis hold the same doctrine as Abu Yusuf

Principle:

"Where a woman is pregnant by fornication with the same who marries her, the marriage is lawful, and connubial intercourse is not forbidden between them. On this there is consensus. The Shaf'eis and Shiahs agree with the Hanafis on this point and Abu Yusuf holds the same opinion as Abu Hanifa and Muhammad.

"And the nasab of the child born of the womb of the woman would be established in the man if it is born at six months or more from the date of marriage". "But if born within six months its nasab would not be established, and it will not inherit to the husband or its mother, unless he says that it is his child and does not add that it is his by fornication. In that case, nasab will be established. This is according to the Khanieh (Fatawai Kazi Khan). If he says it is by Zina, nasab will not be established. But if he does not mention Zina distinctly, nasab will be established, for in this there is the possibility of the pregnancy having taken place from a previous marriage (between him and the woman) or from an invalid contract; and as the conduct of a Moslem should always be attributed to proper motives, so possibly there might have been a prior contract."

Shia Rule Marriage with a Pregnant Woman.

"Among the Shiahs, there seems to be some difference of opinion regarding the validity of a marriage contracted by a man with a woman who is pregnant by adulterous intercourse with another. One writer (the Fazil-ul-Kashani), seems to think there ought to be no marriage, until the woman is delivered. The weight of authority, however, is in favour of the lawfulness of the union. The Jawahir-ul-Kalam says. "If a (married) woman became pregnant by fornication, after which her husband divorced her, in such a case her 'iddat would be according to the ordinary probation as if she had not committed fornication and was not pregnant thereby. For what has been stated as to the 'iddat of a pregnant woman lasting until her delivery does not apply to pregnancy by fornication. In this case the ordinary probation should be calculated. And I have found no difference on this point. If such a woman were to marry another person after the (ordinary) iddat it would be lawful; and I have found no difference thereon, for the delivery is not the period of probation for a woman pregnant by fornication. Similarly, if a woman, who has no husband, is pregnant by Zina, there is no difference (i.e. all are agreed) as to the validity of her marriage (during such pregnancy) with a person (other than the adulterer).

Principle:

"Similarly, it is stated in the Hadaik, that if a woman is pregnant by Zina, there is no 'iddat for her, and she can lawfully intermarry with another before delivery.

In the Mafatih also it is laid down that, the accepted doctrine is there is no `iddat for an adulteress whether she be pregnant or not by fornication and if she be pregnant it is lawful for her to marry before delivery.

At the same time, in order to keep the nasab pure it is recommended that a man should not marry a woman who is pregnant by fornication with another until she is delivered."

(The reproduced contents have been found incorporated in the judgment, Mst. Sakina etc. v. The State, reported as PLD 1981 FSC 320, which aye quoted herein for a quick reference).

Mst. Muqaddas Bibi produced a child from the lineage of the person (appellant), whom she had chosen to become her husband. The Muslim (jurisprudential) well known rule of leaning in favour of legitimization rather than stigmatization must be respected and upheld. Reference in this regard may be had to Manzoor Hussain v. Zahoor Ahmad and 4 others (1992 SCMR 1191).

According to Mahomedan Law, a child really illegitimate by birth becomes legitimated by force of an acknowledgement expressed or implied, directly proved or presumed. Reference in this regard may be made to Abdul Razak v. Agha Muhammad Jaffer Bindanim (ILR 21 Cal. 266 and ILR 21 All. 56), Waliullah v. Miran Sahib (2 Bom.HCR 285), Mahtala Bibee v. Haleemoozooman (10 CLR 293), Dhan Bihi v. Lalon Bibi (ILR 27 Cal. 801). Where a Muhammadan lived and cohabited with a woman, and a son was born in his house, who was acknowledged and recognized by him as his son, such acknowledgement gave the son the status of an heir capable of inheriting as being of a legitimate birth. Reliance in this regard may be had on M. Azmat Ali Khan v. Lalli Begum (ILR 8 Ca1.422 & (1881) LR 9 IA 8). It has been held in M. Ismail Khan v. Fidayat-un-Nisa (ILR 3 All. 723) that the legitimacy or legitimation of a child of Muhammadan parents may properly be presumed or inferred from circumstances without proof either of marriage between the parents or of any formal act of legitimation. It is a settled principle of morality that an acknowledgment by a Muhammadan father renders a son or daughter a legitimate child and heir. The appellant categorically contended in his statement under section 342, Cr.P.C. that Mst. Muqaddas Bibi contracted Nikah with him voluntarily and she gave birth to his daughter, through a surgical operation at Multan. She too narrated this fact in her testimony by contending that she remained admitted in a hospital at Multan for four days, where she delivered a female baby through C-section and made no noise or showed resentment at any stage during her brief sojourn thereat. The female baby is admittedly with the appellant at the moment. As a result of the above discussion, I am in no doubt to hold that Mst. Muqaddas Bibi was the wife of the appellant and the daughter, she gave birth to, was his legitimate offspring born in the said wedlock.

Learned trial court fell in error when it recorded a sweeping observation in the impugned judgment that "Nikah of a pregnant lady is invalid." Though, it did not dub the daughter of the appellant, having been given birth by Mst. Muqaddas Bibi, an illegitimate child, but it appeared to have been held as such by it in so many words, that no other view was possible than that of the illegitimacy, which was uncalled for and patently illegal. The new born was certainly a legitimate child and his parents were the appellant and the complainant's daughter, Mst. Muqaddas Bibi. The appellant did not appear to have committed any offence and uproar of the prosecution in this context was nothing but a mere hoax.

16. In the light of the foregoing discussion, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of the charge. He is present on bail, for, his sentence had been suspended by this court on 12.10.2011. His bail bonds are cancelled and sureties discharged.

JK/M-173/L Appeal allowed.