Mst. NASEER BEGUM vs SAIN AND 6 Other

1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from the judgment of a learned Single Judge of the Peshawar High Court dismissing in limine a Criminal Revision Petition.

2. The respondents 1 to 6, it appears, were sent up for trial on charges under sections 366 and 376/109, Pakistan Penal Code. A Magistrate of the First Class at Abbottabad, however, acquitted them on the ground that the respondent, who was the complainant in that case, being over 16 years of age, had willingly gone after the accused and not been subjected to any force or duress.

3. In fact, her consent was further confirmed by the fact that, even when produced before the District Magistrate, she refused to accompany her father and remained with the accused for a period of eleven months. During this long period she was taken from place to place by public conveyances and had several opportunities to protest, but she did not do so.

4. The accused had even gone through a form of nikah with her.

5. The High Court, after examining the evidence, agreed with the trial Court and refused to interfere.

6. The complainant now seeks special leave to appeal, and the main argument advanced on her behalf is that the Courts below had failed to take into account the fact that before the criminal case was heard she had actually filed a suit and obtained a decree from the Civil Judge.

7. Abbottabad, declaring the alleged nikah invalid and holding that she was not the lawfully wedded wife of the first-named respondent herein who had been charged with abduction.

8. This judgment of the civil Court was announced on the 24th of September 170, but it does not appear to have been produced before the trying Magistrate. There is no reference to it in the judgment of the Magistrate.

9. This point was, however, taken in the grounds before the High Court, but the High Court has also not adverted to it.

10. Learned counsel appearing in support of this petition reiterates the contention that the judgment of the civil Court should have been taken into account, before arriving at a decision in the criminal case. We are unable to agree, because, as pointed out by the Privy Council in the case of Kumar Gopika Raman Roy v. Atal Singh (AIR 1929PC99) "the Evidence Act does not make a of fact arrived at on the evidence before the Court in one case evidence of that fact in another case." Thus, a judgment in a civil Court, as pointed out by M. Munir in his Law of Evidence, "is not admissible in a criminal proceeding to establish the truth of the facts upon which it is rendered. In a criminal trial it is for the Court to determine the question of the guilt of l the accused and it must do so upon the evidence before It".

11. PLD 1960 Dacca 153), it was held by the Dacca High Court that a judgment of acquittal in a criminal case only decides that the accused has not been proved guilty and to this extent only and no more is it to be taken as correct and conclusive in a subsequent civil suit between the parties.

12. The position would be the some with regard to a judgment of a civil Court in a subsequent criminal action. In this view of the matter, we are of the opinion, that the trial Magistrate and the High Court rightly did not take the findings of the civil Court into account in determining the guilt of the accused in the criminal case.

13. We see no reason, therefore, to interfere. This petition is accordingly dismissed.