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Petitioner: FARKHANDA BIBI VS Respondent: STATE
1998 M L D 729
1998 M L D 729
[Federal Shariat Court]
Before Dr. Fida Muhammad Khan and Abdul Waheed Siddiqui, JJ
Mst. FARKHANDA BIBI and others---Appellants
versus
THE STATE---Respondent
Criminal Appeals Nos. 47-I, 65-I and Criminal Revision No. 19-I of 1996, decided on 9th October, 1997.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----S. 10(2)---Constitution of Pakistan (1973), Art. 25---Appreciation of evidence---Burden of proving the existence of a valid marriage between them was on both the accused claiming such marriage which they had failed to discharge---Prosecution, however, had proved beyond reasonable doubt non-existence of a valid marriage between the accused---Marital status of accused was not a mitigating circumstance specially when they had tried to hoodwink the Courts and had not come with clean hands---Female accused was an equal partner, in the offences committed by the co-accused including procurement of a forged Nikahnama and in view of Art. 25 of the Constitution was equal before law qua her active accomplice---Sentence of female accused, however, could not be enhanced in order to bring the same at par with that of male accused as no notice for enhancement of sentence had been given to her-- Convictions and sentences awarded to accused by Trial Court were upheld in circumstances. ---[Sentence].
1992 SCMR 1273; PLD 1983 FSC 110; PLD 1991 SC 898; PLD 1988 SC 186; PLD 1988 FSC 22; PLD 1989 SC 744; PLD 1984 SC 126 and PLD 1984 SC 95 ref.
Raja Mehfooz Ali Satti and Munir Ahmad Kiyani for Appellants.
Muhammad Aslam Uns for Petitioner.
Saliheen Mughal for the State.
Date of hearing: 23rd June, 1997.
JUDGMENT
ABDUL WAHEED SIDDIQUI, J---Appellants have assailed a judgment dated 21-3-1996 delivered by Additional Sessions Judge, Rawalpindi whereby he has convicted appellant Mahmood Hussain under Article 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, hereinafter referred to as the said Ordinance and has sentenced him to undergo R.I. for ten years, whipping numbering 30, and fine of Rs. 20,000 in default to undergo R.I. for further two years, appellant Farkhanda Bibi has been convicted under the Article 10(2) of the said Ordinance and has been sentenced R.I. for two years and 5 stripes and a fine of Rs. 2,000 in default to undergo two months S. I. Through the same judgment Mst. Musarrat Yasmin w/o appellant Mahmood Hussain has been acquitted. The same judgment has also been impugned by Muhammad Aziz, father of Appellant Farkhanda Bibi, through a criminal Revision petition praying thereby to convict appellant Mahmood Hussain under Article 10(3) and 16 of the said Ordinance, and enhance his sentence. Acquitted lady Musarrat Yasmin be convicted under Article 16 of the said Ordinance and appellant Farkhanda Bibi be acquitted.
2. Briefly, the story of prosecution is that a complaint (Exh. PB) was made to S.H.O, Police Station Kotli Sattian, District Rawalpindi on 22-12-1992 at 7-30 hours whereby Muhammad Aziz (P. W.2) complained that on 20-12-1992 one Mst. Musarrat Shaheen w/o appellant Mahmood Hussain went to their house and stayed for a night there. Early in the morning about 7 a.m this guest lady and complainant's daughter appellant Farkhanda Bibi aged 14/15 years went towards spring to bring water. They did not turn up for a considerable time. Then the complainant went towards the spring, but found only utensils of water. He tried to find them in the houses of relatives and neighbourers but were not there. While he was going towards Biaga to the house of appellant Mahmood Hussain, he came across Muhammad Ayoob (P. W.4) and Muhammad Gulzar who informed him that Mahmood Hussain and his wife accompanied by a girl wrapped in a chadar in Suzuki No. RIN-1194 were proceeding towards Lahtrar. The complainant tried to find them upto Rawalpindi but could not succeed. An F.I.R., was registered under Article 11 of the said Ordinance and after investigation three person were challaned. Two of the appellants and one Musarrat Yasmin the acquitted accused.
3. Appellant Mahmood Hussain and acquitted Musarrat Yasmin were charged firstly under Article 16 of the said Ordinance, secondly the two appellants were charged under Article 10 of the said Ordinance and thirdly acquitted Musarrat Yasmin was charged under Article 109, P.P.C. to which none pleaded guilty. Prosecution examined eight witnesses. Dr. Mushtaq Ahmed (P. W.1) has proved the virility of appellant Mahmood Hussain, Muhammad Aziz (P. W.2), the complainant father of appellant Farkhanda Bibi, has proved that his daughter named above was enticed away on 21-12-1992 by appellant Mahmood Hussain and his wife acquitted accused Mst. Musarrat Yasmin. He has proved complaint Exh. PB and has also proved that on 11-1-1993 his supplementary statement was recorded under section 161, Cr.P.C. by the concerned police station before five persons. Appellant Mahmood Hussain was in custody and on his pointation his daughter was recovered from a double storey house in Mohallah Chiragh Din, Rawalpindi. He gave his supplementary statement mentioned above after the recovery of his daughter and requested police to cite other persons present as P.Ws, but the Investigating Officer recorded statement of only one Taj on 11-1-1993 but recorded the date to be 13-1-1993 on it. So he filed an application before D.S.P. Murree for transfer of investigation which is Exh. P.C. During cross he has admitted that Mst. Farkhanda was recovered from a three storeyed building in a thickly populated area and the landlord also resides there. Havaldar Muhammad Taj (P.W.3) has proved recovery of Mst. Farkhanda on 11-1-1993 at 1200 noon from Dhok Chiragh Din, Rawalpindi on the pointation of appellant Mahmood. They made a complaint to the S.S.P. that the girl was recovered on 11-1-1993 and was kept at Police Station Kotli Sattian upto 14-1-1993. During cross he has admitted that his statement was recorded at Police Station on 13-1-1993 by Sarfaraz S.I. whom he had told that she was recovered on 11-1-1993 and not on 13-1-1993. Three other persons were also present and then a delegation met S.S.P. Rawalpindi. Muhammad Ayub (P.W.4) has proved that they saw all the accused were travelling in Suzuki Pick-up on, the day of incident and finding complainant disturbed, informed him about that fact. During cross he admitted that he identified two of the accused whereas the third was concealed in a black chaddar. Muhammad Sarfraz (P.W.5) has proved that on 22-12-1992 he was posted as S I at Police Station Kotli Sattian. Being I.O. he went to the place of occurrence, prepared site plan Exh. PD, recorded statements under section 161, Cr.P.C. recovered Mst. Farkhanda and prepared site plan of the house of recovery as Ex. P.E. Both the appellants were arrested and medically examined. He produced Mst. Farkhanda Before RM/AC Koth Sattian and got her statement under section 164, Cr.P.C recorded. during cross he has admitted that Nikahnama, birth certificate and an affidavit were produced before him by Asif, a relative of appellant Mahmood Hussain. He summoned the Nikah Khawan and recorded his statement, but did not cite him as a P.W. He has admitted further that Mst. Farkhanda was sent to Darul Aman after her statement under section 164, Cr.P.C. was recorded, and 3/4 days after lodging her in Darul Aman she was medically examined. She was not treated as accused before her medico-legal examination. He has admitted that at the time of recovery of Mst. Farkhanda, the door of the house was bolted from inside and not from outside and she herself opened the door on the knocking of appellant Mahmood Hussain and that the landlord was residing at the upper portion of the house. He did not register any case under section 420, 468, 471, P.P.C., for preparing forged Nikahnama. Muhammad Ayub (P. W.6) A.S.I. has proved drafting the formal F.I.R. Exh. PB/1. He received a sealed parcel on 17-1-1993 from Muhammad Rafique constable which remained in his safe custody in police Malkhana and was handed over intact on 18-1-1993 to the same constable for onward transmission to the chemical examiner. During cross he has admitted that on 12-1-1993 both the appellants were in police custody at Police Station and S.S.P. Rawalpindi had come for inspection and made same query from them. Muhammad Rafique (P. W.7) constable has proved safe custody and delivery of the sealed parcel to the chemical examiner on 17-1-1993. Lady Dr. Rukhsana (P. W.8) examined appellant Farkhanda on 17-1-1993 and found her a young girl of average built and no marks of violence were found. Hymen was old torn and healed. Vagina admitted two fingers tightly. Two vaginal swabs which were blood-stained were obtained for semen analysis and sent through police to the chemical examiner. She opined that that the examinee was subjected to sexual intercourse. She saw pregnancy report on 18-1-1993 which was negative. At that time the examinee was having menses. On 27-11-1994 Syed Ayub Shah, ADA for State tendered in evidence Report of Chemical Examiner Exh. PG and report of F.I.Rs. Exhs. PH and PI and closed the prosecution evidence. In his statement under section 342, Cr.P.C. appellant Mahmood Hussain has denied enticing away Mst. Farkhanda either by his wife or by him or by both on 21-12-1992. However, to question No. 4, he has replied.
"In fact Mst. Farkhanda Bibi had contracted marriage with me as my wife. "
To Question No. 8 he has replied
"All the P.Ws., are interested and they have deposed against me at the instance of father of Mst. Farkhanda who was against the marriage contracted by us.
In her statement under section 342, Cr.P.C. of appellant Farkhanda Bibi, questions Nos. 2, 3, 4, 5, and 8 and replies thereof are reproduced;
Q. No. 2. "It is in evidence that you were residing with your father Muhammad Aziz on 20-12-1992 when Mahmood Hussain and Mst Mussarat Yasmeen stayed for a night in your house and on 21-12-1992 in the early hours of the day both the accused enticed away you on the pretext fetching water from a Chashma?
Ans. It is correct.
Q. No. 3. It is also in evidence that you and your co-accused aforementioned instead of returning home after fetching water you accompanied both the accused in a Suzuki No. RIN/1194 towards Lahtrar?
Ans. It is incorrect. In fact I was taken away by the accused Mehmood and his wife.
Q. No. 4. It is also in evidence that after that you lived with your co-accused Mehmood Hussain in Mohallah Chiragh Din (Qaziabad), Rawalpindi and both of you had been committing Zina with each other knowingly and having reason to believe that you both were not husband and wife?
Ans. It is correct that I live with accused in Qaziabad for 20 days as for as allegation of Zina, the accused had been committing Zina against my consent forcibly and that I was not married with accused Mehmood Hussain. The accused Mehmood has prepared forged Nikahnama. I filed a suit for jactitation of marriage. The suit was decreed in favour of accused Mehmood, however, decree was set aside by the trial Court of Ch. Ghulam Rasool, Additional District Judge, Rawalpindi on 24-4-1995.
Q. No. 5. It is also in evidence that on 11-1-1993 you were recovered from the house while you were living with your co-accused Mehmood in Dhoke 'Chiragh Din at the instance of Mehmood accused who was in police custody?
Ans. It is correct.
Q. No. 8. Why this case made against you and why the P.Ws. have deposed against you?
Ans. I have been made an accused by the police with active connivance of Mehmood Hussain accused. I am innocent. The P.Ws have not deposed against me.
In her statement under section 342, Cr.P.C. acquitted accused Mst. Musarrat Yasmeen w/o appellant Mahmood Hussain has denied all the specific questions including the recovery of Mst. Farkhanda on 11-11-1993 on the pointation of appellant Mahmood Hussain in custody. To a question as to why P.Ws., have deposed against her. She replied that it was due to previous enmity. She declined to produce witnesses in defence or be examined on oath. In defence of appellant Mahmood Hussain, Syed Khalid Gilani (D.W.1) who was S.D.M., Kotli Sattian at the relevant time deposed that on 14-1-1993 Mst. Farkhanda Jabeen d/o Aziz appeared before him through police and he recorded her statement under section 1.64, Cr.P.C. (Exh. DA). He produced certified true copy of the said statement. During cross he admitted that the statement was recorded by the Reader at his dictation on the statement of examinee. Hafiz Fazal Dad (D.W.2) has deposed that he solemnized Nikah between Mahmood and Farkhanda on 24-12-1992. He recognised photocopy of Nikahnama marked A and produced a register in which relevant entries were made at No./944 marked B. During cross he has admitted that at the time of Nikah he was not informed about the previous three marriages of appellant Mahmood. He admitted recording of his statement before Family Court Kotli Sattian on 7-12-1994. He also appeared before A.C. Cantt. On 26-1-1993 and his statement was obtained through coercion, but he did not mention it so before the recording person. He had not made any complaint about coercion before any forum. He has proved his signatures on D.W.2/A, D.W.2/B, D.W.2/C and D.W.2/D. He has volunteered to depose that stamp paper was not purchased by him.
Appellant Mahmood Hussain declined to be examined on oath. However, he produced in his defence certified copies of Bail Petition Exh. DB, bail grant order Exh. DD and bail grant order Exh. DE. Appellant Farkhanda declined to be examined on oath.
4. We have heard the learned counsel for appellants, petitioner and State. The counsel for appellant Mahmood Hussain has contended that the issue of the existence of a valid Nikah with Mst. Farkhanda was already decided by the learned Family Court and that the lady had left her father's house with her own free-will and had entered into the contract of Nikah with appellant Mahmood Hussain without coercion and was sui juris to do so; that the first statement of Mst. Farkhanda under section 164, Cr.P.C. before a competent Authority and her insistence on it for six months is more than enough to prove that she was living with appellant Mahmood Hussain as a wife with her consent; that reliance has been placed on inter alia, 1992 SCMR 1273, PLD 1983 FSC 110, PLD 1991 SC 898, PLD 1988 SC 186, PLD 1988 FSC 22, PLD 1989 SC 744. The counsel for petitioner has not pressed Revision against acquittal of Mst. Musarrat Yasmin, however, he has vehemently argued that Mst. Farkhanda who was an inexperienced young lady, was enticed away by an experienced and clever person like appellant Mahmood Hussain who had already married with three other ladies earlier and then she was subjected to illicit intercourse for 20 days without the existence of a valid marriage and, therefore, he was entitled to higher punishment under Article 10 (3) of the said Ordinance and Ms t Farkhanda being a victim was entitled to acquittal; reliance has been placed by him on PLD 1984 SC 126. The counsel for State has contended that in the absence of a valid marriage, appellant Farkhanda is equally responsible for indulging into the offence of Zina as a consenting partner, and therefore, she is to be awarded a sentence at par with applicant Mahmood Hussain.
5. It is clear from the following pieces of evidence that appellant Farkhanda was living with her own free-will with the appellant Mahmood Hussain at the time of her recovery from a rented ground floor of a double storey house at Dhoke Chiragh Din on or upto 11-1-1993.
(1) Muhammad Sarfraz (P.W.5) S.I. of Police Station Kotli Settian and Investigating Officer of the case has admitted during cross that at the time of recovery of appellant Mst. Farkhanda from the ground floor of a house situated in a thickly populated area, on the knocking of the door by appellant Mahmood Hussain in custody, she herself opened the door which was bolted inside and it was not bolted from out side and that it was a rented house in which landlord himself was residing at the upper storey. This piece of evidence proves that she was not living in the house under force or duress and she had an ample chance to liberate herself in case she was being raped there, but she had not availed off that chance. This piece has gone unchallenged. Appellant Mst. Farkhanda was specifically asked question No. 4 about this situation in her statement under section 342, Cr.P.C., but her reply is evasive. She has admitted her residence with appellant Mahmood Hussain in the said house for 20 days, but simultaneously she has alleged that Zina was being committed without her consent and that a forged Nikahnama was prepared by appellant Mahmood Hussain
(2) The deposition of Syed Khalid Gillani (D.W.1) has gone untarnished in which he has proved that on 14-1-1993 appellant Farkhanda was produced by police in his Court and her statement under Section 164, Cr.P.C. Exh. DA was recorded. This statement reads as under
(3) Muhammad Ayoob (P.W.4) has admitted during cross that appellant Farkhanda was not making any noise at the time she was travelling with appellant Mahmood Hussain and his wife Mst. Musarrat in a Suzuki Pick-up on 21-12-1992 coming from Beeyaga side (the original village of appellant Mahmood Hussain). This piece of evidence confirms the story told by appellant Farkhanda in her statement under section 164, Cr. P C on 14-1-1993. In fact they were proceeding for Beeyaga towards Dhoke Chiragh Din, Rawalpindi in a Suzuki pick-up and appellant Farkhanda was travelling with her own free intention as otherwise she would have made noises and the pick-up was full with passengers,
(4) Lady Doctor Rukhsana Mughal (P.W.8) has given her finding that there was no mark of violence on any part of the body of appellant Farkhanda which included her private parts. This indicates that it was a case of cohabitation with consent and this piece of evidence has not even been challenged.
(5) Hafiz Fazal Dad Chishti (D.W.2), Imam Markazi Jamia Masjid WAPDA Colony Marrir Hassan and Nikah Khwan has proved that he solemnized Nikah per Nikahnama Mark A and insertion per serial No. 944 in the Register of Nikah mark B. Nikahnama Mark A contains the signature of appellant Farkhanda and is in conformity in all details with her statement under section 164, Cr.P.C. W.
(6) The age of Mst. Farkhanda has been wrongly indicated as 14/15 years in complaint (Exh. PB) and F.I.R., which becomes 16/17 years in a direct complaint filed by petitioner on 17-1-1993 in the Court of Illaqa Magistrate Police Station, Civil Lines, Rawalpindi whereas Medico-legal certificate declares her age to be that of 19 years and Nikahnama also confirms this age. Her own conduct and various applications do prove that on the date of Nikah she was sui juris and over 16 years of age. This indicates that she was in that age group in which it was not easy to entice her away or be duped for such a longer period starting from 21-12-1992 and continuing for many months. In her own application for grant of bail (Exh. DB) filed in the court of Sessions Judge, Rawalpindi on 6-4-1993 she is stating in paras Nos. 1, 2, 3, 5, 6, 7, and 8 as under:
That the petitioner and co-accused Mahmood Hussain and wife of Mahmood Hussain Musarrat Yasmin have been involved in the abovementioned case due to enmity and ulterior motive on the part of the prosecution and complainant.
That the petitioner has no concern with the same offence and petitioner is legally wedded wife of the co-accused namely, Muhammad Hussain. The Nikah was performed according to the law.
That the petitioner has also stated after her recovery by the police under section 164, Cr.P.C. that she had owned the performance of Nikah with the co-accused Mahmood Hussain.
That the petitioner is a major girl. She has performed Nikah with the co-accused namely Mahmood Hussain without any pressure and Nikah was performed on her own free-will.
That due to enmity the father of the petitioner has lodged F.I.R., against the petitioner and co-accused namely, Mahmood Hussain.
That bail of the co-accused namely Musarrat Yasmin has been granted by the learned Additional District and Sessions Judge Mr. Mazhar Hussain Minhas, Rawalpindi on 9-1-1993 and the bail of the co-accused namely Mahmood Hussain has been admitted by the Lahore High Court Rawalpindi Bench Rawalpindi on 30-3-1993.
That the case of the petitioner is also at par with the co-accused.
Even otherwise, it stands proved from the evidence on the record that she was a close relative of appellant Mahmood Hussain and his first wife acquitted accused Mst. Musarrat Yasmin. During cross Muhammad Aziz (P.W.2) complainant, has admitted that a day prior to occurrence Mahmood Hussain and his wife Mst. Musarrat had come to his house but Mahmood Hussain left his shop at about 12-00 noon and Mst. Musarrat spent night with Mst. Farkhanda in the same room. This room as per site plan (Exh. PD) is the first-sleeping room with easy exit towards outside the house. Early in the morning both the ladies went towards spring of water alongwith utensils which was 100/150 yards towards north of his house and then both of them went for fetching water in his presence. This piece of evidence indicates earlier close intimacy of the families.
During search of the two ladies, he had gone to the house of his brothers Muhammad Ayub and Mubarak. This is another indication of some close intimacy or relationship of the families specially when the complainant and the accused appellants are all Satties by caste. The intimacy to the extent of close relationship is disclosed by acquitted accused Mst. Musarrat Yasmeen in her statement under section 161, Cr.P.C. on 26-12-1992 as under:
Farkhanda in her own statements under section 161, Cr.P.C. has further disclosed the inter-relationship of the parties and the reasons for her own elopement with appellant Mahmood Hussain. She is stating on 13-1-1993:
All this evidence is enough to prove that she, being a close relative of appellant Mahmood Hussain and his first wife, and there being geo-social nearness and intimacies and mutual confidence of the families, she was in the knowledge of the number of wives, children, habits and sources of income of appellant Mahmood Hussain. Consequently we are not persuaded by the counsel for petitioner that appellant Farkhanda was enticed or taken away by force or show of force.
6. Now arises the question of the existence of a valid marriage as claimed by appellant Mahmood Hussain and denied by appellant Farkhanda and petitioner/complainant. Zina has been defined under Article 4 of the said Ordinance as under:---
A man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being validly married to each other. "
The learned counsel for petitioner has correctly relied upon the rulings at placentia V, W, and X of Muhammad Azam s case cited as PLD 1984 SC 95. These rulings read:
Validity of the marriage is a sine qua ion for the success of the defence of marriage n case of Zina or Zina-bil-Jabr, to Tazir. This Court in Ghulam Shabir Shah v. The Stat (1) has already ruled in this behalf that the word "validly" cannot be treated as a mere surplus age and has to be given full meaning and effect. 'Irregular' marriage, therefore, affords no protection; as, being not a 'valid' marriage It may be added that a 'double' marriage in so far as factual aspect is concerned for the same reasons, would not afford any protection Here a reference to the comparative provision regarding Zina liable to Hadd offence, would illustrate the point. While section 5 of the Ordinance, provides that a person who is not married to and does not suspect himself to be married' to the member of the opposite sex with whom the Zina is said to have been committed, is liable to Hadd; if of course. certain other conditions are satisfied. Thus, the success of the pleas that accused 'suspected himself to be married' to the person concerned will be a defence for him to avoid the Hadd. No such suspicion, tactual or legal, on the part of the accused in the offence of Zina liable to Tazir, has been provided as defence in sections 4 or 6 (1) or 10 of the Ordinance. It is not necessary to go into the reasons for this difference. The law of Tazir is very clear on the point.----- One who raises this plea would have to establish the same in law and fact beyond any suspicion about it. If there is failure on his or her behalf for any reason whatsoever to produce evidence, it being the mandate of law as an important part of definition of the offence, once seriously and genuinely, raised (with some foundation and not for the purpose of delay and vexation which features are always discoverable by exercising judicial mind), the Court would be duty bound to examine it in depth, even if it involves action under section 540, Cr.P.C. (first and…
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