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Petitioner: MUHAMMAD YAQOOB and anothers VS Respondent: THE STATE and 3 others
Court Name: Federal Shariat Court Judge(s): Malik Ghulam Ali, Ch. Muhammad Siddique Title: MUHAMMAD YAQOOB and anothers vs THE STATE and 3 others Case No.:Criminal Appeal No,15/L of 1984 connected with Criminal Petition for
JUDGMENT
Reported As: 1985 P Cr. L J 1064 Result: Appeal accepted Judgment JUDGMENT ' MUHAMMAD SIDDIQUE, J.--This is an appeal under section 20 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (hereinafter referred to as the Ordinance) against the impugned judgment of the Additional Sessions Judge, Faisalabad dated 11-1-1984 whereby Muhammad Yaqoob and Mst. Shamim Akhtar accused were found guilty - under section 10(2) of the Ordinance and each sentenced to R.I. For 6 years plus whipping numbering 20 stripes and a fine of Rs,5,000 or in default of payment of fine further R.I. For 6 months. 2. Both the convicts have challenged their convictions and sentences through the present appeal. 3. In support of its case the prosecution produced 10 witnesses. Hafiz Taj Din (P.W.1) claims to have performed the Nikah of Muhammad Iqbal P.W. With Mst. Shamim Akhtar accused on 11-04-1980. According to him Allah Bakhsh and Muhammad Yousaf were the Vakeels for the bridegroom Muhammad Iqbal while Bashir Ahmad and another person were the Vakeels of the bride. Ali Muhammad, an uncle of Mst. Shamim Akhtar was also present who had granted permission for the Nikah which was performed after the offer and acceptance by Muhammad Iqbal and Mst. Shamim Akhtar. The bride, the bridegroom, the witness and their Vakeels had signed the Nikahnama Exh.P.A. Which also bore the signatures of this witness. In cross-examination it is admitted by this witness that Mst.Shamim Akhtar was not personally known to him. He denied the suggestion that he had not accompanied the witnesses when Mst. Shamim Akhtar had accepted the offer of marriage. He has also admitted that he was not maintaining any record with regard to the marriages performed by him and he did not remember all the particulars of the parties to the marriage of which Nikah was performed by him. The Nikah ceremony had taken place in the house of Sher Muhammad but
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he did not know if said Sher Muhammad was related to any of the parties to marriage. It is denied by him that the Nikah of Mst.Shamim Akhtar and Muhammad Iqbal was-performed by him on 27- 4-1980. It is further denied by him that on 11-4-1980, it had come to his notice that Mst. Shamim Akhtar was already married to Muhammad Yaqoob accused. He however did not know that prior to the aforementioned Nikah dated 11-4-1980, Mst. Shamim Akhtar was brought from the house of Muhammad Yaqoob accused. He had admitted that he had appeared as a witness in a suit filed by Mst.Shamim Akhtar accused against Muhammad Iqbal P.W. Disowning her marriage with him and that suit filed by Mst. Shamim accused was decreed by the Court. 4. Muhammad Siddique (P.W.2) is the Nikah Registrar of Ward No,1684, Union Committee No,9. After seeing original register in the Court he stated that Nikahnama Exh.P.A. Was in his hand. The Nikah was performed between Muhammad Iqbal P.W. And Mst. Shamim Akhtar accused by Hafiz Taj Din. Iqbal P.W. And Mst. Shamim accused had signed the Nikahnama Exh.P.A. And the same was registered by him and the Nikahnama was signed by him. In cross-examination he admitted that Mst. Shamim Akhtar and Muhammad Iqbal were previously known to him. He has further admitted that Mst. Shamim Akhtar accused had filed a suit against Muhammad Iqbal P.W. Pertaining to the Nikahnama Exh.P.A. And he had appeared as a witness in that case. He, however, did not know that the said suit was decreed. According to him he had not stated before the Court in the said suit that neither the plaintiff of the said case nor the defendant were personally known to him. At this stage the learned counsel for the accused informed the trial Court that he was in possession of the certified copy of such a statement and that the original file might be summoned to enable the counsel to confront the witness with his previous statement. After this request of the learned defence counsel the trial Court passed the following orders:- "Order: ' I have seen the certified copy of the statement of Muhammad Siddique available to the learned counsel. Let the file of the suit for jactitation of marriage Suit No,140-S.C/1981, decided by Sh.Muhammad Yousaf, Judge Family Court, Faisalabad, on 5-12-1982, be summoned for tomorrow. Sd/ Addl. Sessions Judge,\ Faisalabad 3-9-1983." ' Accordingly, the said file from the Judge Family Court was summoned and made available to the trial Court and this witness was confronted with that statement. It is admitted by this witness that he had stated before the civil Court that neither the plaintiff nor the defendant in the suit titled Mst. Shamim Begum v. Muhammad lqbal were known to him personally. It is denied by him that at the time of Nikah Mst. Shamim Akhtar was not present. According to this witness the Nikah was performed in his presence and it was registered by him at the same time. Volunteered that the Nikah was filled by him and when the bride Mst. Shamim had given her consent and signed the Nikahnama he was present. Thereafter, when he registered the Nikah Mst. Shamim Akhtar was not in front of him but was present in the house. He has . Admitted that he had stated in his statement before the civil Court that at the time of registration of Nikah, Mst. Shamim Akhtar had signed the Nikahnama in his presence. He has further admitted that he had stated in his statement before civil Court that consent of the plaintiff (Mst. Shamim Akhtar) was obtained by Yousaf and Inayat. He denied the defence suggestion that in the first instance the Nikah of Muhammad Iqbal and Mst. Shamim Akhtar was entered at page No,25 of the Register of Nikahnama. He has also denied that he had stated in his statement Exh.D.A. That the entry of Nikah at page 25 was cancelled by him. He was duly confronted with Exh.D.A. Wherein it was so recorded. He further denied that he had stated in his statement Exh.D.A. That he did not remember if the entries of page No,25 were cancelled by him. Again he was duly confronted with Exh.D.A. Wherein it was so recorded. He has denied the suggestion that the Nikah of Mst. Shamim Akhtar and Muhammad Iqbal was performed and
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registered on 27-4-1980 and that in order to change the date of Nikah from 27-4-1980 to 11-4-1980 page 25 of the Nikah Register was removed by him and fictitious entry was made at page 26 with regard to the Nikah between Mst. Shamim Akhtar and Muhammad lqbal. He has also denied the suggestion that the contents of Nikahnama Exh.P.A. Were forgedly prepared and that no Nikah had validly been performed between Mst. Shamim Akhtar and Muhammad lqbal. 5. Lady Dr. Mrs. Nafees Akhtar (P.W.3) on 30-4-1980 at about 6-00 p.m. Had medically examined Mst. Shamim Akhtaz accused aged 20 years and made the following observations:- "Hymen was broken with old and healed tears. No mark of injury or contusion was present on her body or private parts. She was habitual to sexual intercourse. Vagina admitted two fingers. Two vaginal swa bs were taken and sent to the chemical examiner, Lahore for determination of presence of semen." ' Dr.Muhammad Ajmal !Than (P.W.4) on 18-5-1980 medically examined Muhammad Yaqoob accused and found him fit for sexual intercourse. H.C. Javid Akhtar (P.W.5) on 3-5-1980 on the receipt of complaint Exh.P,D., recorded the formal F.I.R. Exh.PD/1 signed by him. 6. Khan Muhammad (P.W.6) is the witness of Nikah of Mst. Shamim Akhtar accused with Muhammad lqbal P.W. According to him on 11-4-1980 he was present when the Nikah of Mst.Shamim Akhtar was performed with Muhammad lqbal. The Nikah was performed with the consent of Muhammad Iqbal and Mst. Shamim and the Nikah was performed by Hafiz Taj Din (P.W.1) and the same was registered and the entries were made in the Nikahnama Exh.P.A. By Muhammad Siddiq P.W. In cross-examination this witness has stated that the Nikah was performed in the house of Sher Muhammad who is related to Mst. Shamim Akhtar accused. The wife of Sher Muhammad was the niece of the father of Mst. Shamim Akhtar. Before the Nikah with Iqbal P.W., Mst. Shamim Akhtar accused used to live in the house of her uncle All Muhammad and she had come to the house of Sher Muhammad 3/4 days before the Nikah. He denied the suggestion that before the Nikah of Mst. Shamim Akhtar accused and Muhammad Iqbal P.W., she had already gone for the house of Muhammad Yaqoob accused and that she was brought from the house of said accused at the time of Nikah Exh.P.A. This witness has admitted that Mst.Shamim accused is the daughter of his real maternal-uncle. He denied the defence suggestion that the Nikah of Mst. Shamim Akhtar had taken place on 27-4-1980 and that he was present at the time of Nikah. He however admitted that Mst. Shamim Akhtar accused had filed a suit against Muhammad Iqbal P.W. First he stated that he did not remember if he had appeared as a witness in that suit but again said that he had appeared as a D.W. In the said suit. It is further admitted by him that he had stated in his statement before the Court that before her marriage, the plaintiff (Mst. Shamim Akhtar) used to live in the house of her father with her step-mother volunteered that at times she used to live in the house of her father and at times in the house of her uncle Ali Muhammad. He had denied the suggestion that Mst.Shamim Akhtar accused had contracted a marriage with Muhammad Yaqoob accused and thereafter Muhammad Yousaf, Allah Bakhsh, and Inayat had brought her from the house of Muhammad Yaqoob accused forcibly and prepared a fictitious Nikahnama of Mst. Shamim Akhtar with Muhammad Iqbal and that at that time Mst. Shamim Akhtar accused was locked in a room. Bashir Ahmad (P.W.7) has also made a similar statement as that of Khan Muhammad (P.W.6.). 7. Ali Muhammad (P:W.8) is the complainant and paternal-uncle of Mst.Shamim Akhtar being real daughter of his brother Ata Muhammad who had died before the present occurrence. The widow of said brother had also died some ten years before the present occurrence. His brother Ata Muhammad had no male issue but had only three daughters including Mst.Shamim Akhtar. After the death of their father all the three daughters of his brother used to live with this witness. He was carrying on a joint business of powerlooms with Muhammad Yaqoob accused. According to this witness on 11-4-1980 he had married Mst.Shamim Akhtar accused with Muhammad IqbalP.W. And
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the Nikah was performed by Hafiz Taj Din and was registered by Muhammad Siddique P.W. This witness was present at the time of Nikah and had signed the Nikahnama Exh.P.A. The Nikah was performed with her free consent. On 23-4-1980 Mst.Shamim Akhtar accused had come to his house from the house of her husband Muhammad Iqbal P.W. On the said date she had gone to the house of Muhammad Yaqoob accused because the daughter of Yaqoob accused was a fellow student of Mst. Shamim Akhtar previously. Mst. Shamim Akhtar accused failed to return to his house till night. The witness sent Ahmad Din to the house of Yaqoob accused to bring back Mst.Shamim Akhtar accused but Yaqoob accused did not allow her to return to his house. After that the witness accompanied by Allah Bakhsh, Boota, Ghulam Rasul, Ibrahim and Ahmad Din went to the house of Yaqoob accused as a Panchayat. Muhammad Yaqoob accused met them there and after a short discussion, he stated that Mst. Shamim accused was with him and that he would return her the following morning. On the following day again the witness himself, Ahmad Din and Anwar went to the house of Yaqoob accused and he allowed Mst. Shamim Akhtar accused to accompany them. After returning to his house, he asked Mst. Shamim Akhtar as to why she had gone to the house of Yaqoob accused, Mst. Shamim accused stated that she was in love with Yaqoob accused and that she would not live in the house of her husband lqbal P.W. After that, the witness lodged the complaint Ex.P.D. With the police signed by him. It is further stated by this witness that Mst. Shamim Akhtar and Yaqoob accused were living as husband and wife. He did not know if Iqbal P.W. Had divorced Mst.Shamim Akhtar or not. In cross-examination the witness has admitted that Mst.Shamim accused filed a suit against Muhammad Iqbal and he had appeared as a witness in that case. It is further admitted by him that he had stated in his statement that the daughter of Yaqoob accused had taken the plaintiff of said case on the pretext of marriage. It is also admitted by this witness that a case was registered against Muhammad Yousaf and others on the complaint of Muhammad Yaqoob accused on 30-4-1980. He did not know if Mst. Shamim Akhtar was arrested by the police before the complaint Exh.P.D. Was lodged by him. He further did not know if Mst. Shamim was sent to Darul-Amman by the Magistrate. He denied the defence suggestion that the Nikanama of Mst. Shamim Akhtar and Muhammad Iqbal was not produced by him during the investigation of the case registered on the complaint of Yaqoob accused. He did not know if Mst. Shamim accused was arrested from the house of Muhammad Iqbal P.W. He denied the defence suggestion that on 24-4-1980 Mst. Shamim accused had informed him that she had contracted marriage with Yaqoob accused. He, however, admitted that his brother Ata Muhammad was owner of powerlooms in three Khattas and each one of his daughter received one Khatta. He denied the suggestion that the said powerlooms and Khattas were in possession of himself and Ahmad Din. Volunteered that the said powerlooms and Khattas were in possession of the step-mother of Mst. Shamim Akhtar accused. He denied the suggestion that he was in possession of the land belonging to his brother Ata Muhammad and that in order to retain his illegal possession of land left by his brother Ata Muhammad, he wanted to marry Mst. Shamim Akhtar with a person who could not claim the possession of land from him. It is also denied by this witness that on 27-4-1980 Nikahnama Exh.P.A. Was 'fictitiously prepared and that Mst. Shamim Akhtar had told him that she had contracted marriage with Muhammad Yaqoob accused. It is also denied by him that only to save the accused in the case registered on the complaint of Yaqoob accused, he had lodged a false complaint Exh.P.D. With the police. According to him Mst. Nasim Akhtar the sister of Mst. Shamim accused was married on 27-4-1980. The witness did not know if Mst. Shamim had given birth to any child as a result of sexual relation between her and Muhammad Yaqoob accused. 8. Muhammad Iqbal (P.W.9) claims to be husband of Mst.Shamim Akhtar accused. According to him his Nikah was performed with her on 11-4-1980 in the house of Sher Muhammad P.W. And the permission for Nikah was given by Ali Muhammad P.W. Who is the paternal-uncle of Mst.Shamim
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Akhtar accused. The parents of Mst. Shamim accused had died long ago. According to this witness he had signed the Nikahnama Exh.P.A. And it was also signed by Mst.Shamim Akhtar accused. The Nikah was performed by Hafiz Taj Din P.W. There were about 50/60 persons present at the time of Nikah. It is further stated by this Witness that after marriage Mst.Shamim accused had been performing the marital relatiobs with him till 22-4-1980. On 22nd or 23rd of April, 1980, Mst.Shamim accused had gone to the house of Ali Muhammad P.W. For a normal visit. From the house of All Muhammad Mst. Shamim Akhtar accused had gone to the house of Muhammad Yaqoob accused and failed to return. Muhammad Yaqoob accused was detaining her for the purpose of illicit relations and both the accused were committing Zina with each other. He produced the Nikahnama Exh.P.A. Before the police during the investigation of this case. In cross-examination it is admitted by this witness that Mst. Shamim Akhtar accused had filed a suit against him with regard to the Nikahnama Exh.P.A. Volunteered that it was a false suit. It is further admitted by this witness that the said suit was decreed in favour of Mst.Shamim Akhtar accused and he had not filed any appeal against said decree. It is further stated by him that he had not filed a suit for restitution of conjugal rights. His statement was recorded in the above-said suit. He has denied the defence suggestion that he himself, Yousaf, Inayat and Allah Bakhsh had forcibly brought Mst. Shamim Akhtar from the house of Muhammad Yaqoob accused in his absence. After returning from the house of Muhammad Yaqoob accused, she had lived in his house for 3/4 days. Mst. Shamim Akhtar accused was not arrested from his house. Volunteered that he had produced her at the Police Station. He has admitted that in his statement before the Civil Court, he had stated that the plaintiff i.e,Mst. Shamim Akhtar accused was arrested from his house. He has however, admitted that Mst. Shamim Akhtar accused arrested in the case which was registered against him and others on the complaint of Muhammad Yaqoob accused. It is further admitted by him that Mst. Shamim Akhtar accused was sent to Dar-ul-Aman as ordered by the Magistrate. He denied the defence suggestion that Nikahnama E3ch.P.A. Was fictitiously prepared after 24-4-1980 after which date he had been performing illegal sexual intercourse with Mst. Shamim Akhtar accused. Volunteered that he had been performing sexual relations with her after 24-4-1980 because she was his wife. He was duly confronted with his police statement Exh. D.D. Where certain things were not mentioned which he had deposed before the trial Court. It is admitted by him that Mst. Shamim Akhtar accused had not signed the Nikahnama Exh.P.A. In his presence. He however denied the suggestion that in the first instance his Nikah with her was entered in the Register on 24-4-1980 and that the said page of the Nikah register was removed and destroyed. According to him the Nikanama Exh P.A. Was completed in his presence and Mst. Shamim Akhtar had signed earlier than he had signed the same. 9. S.I. Abdul Majid ( P.W. 10) is the Investigating Officer in this case. He had recorded the complaint Exh.P.D. Of Ali Muhammad P.W. He forwarded the said complaint to the Police Station for registration of the case. He proceeded to the place of occurrence and prepared the site plan Exh. P.F. He recorded the statements of P.Ws. He secured the Nikahnama Exh. P.A.Vide memo Exh. P.E signed by him. He also secured original register of Nikahs vide recovery memo Exh. P.G. He also secured another Nikah register Exh.P.H. He got Mst. Shamim accused medically examined at D.H.Q Hospital, Faisalabad. She was formally arrested in this case on 3-5-1980. Muhammad Yaqoob accused was arrested by him on 18-5-1980 and also got him medically examined. After the completion of the investigation, he challaned both the accused. In cross-examination this Police Officer has admitted that Muhammad Iqbal P.W. Had produced the Nikahnama Exh. P.A. On 3-5-1980. It is further admitted by him that Yaqoob accused had got a case registered with regard to the abduction of his co-accused Mst. Shamim Akhtar against Muhammad Iqbal and others. Mst. Shamim Akhtar accused was recovered during the investigation of the said case on 30-4-1980. She was produced before the Court from where she was sent to Darul Aman. This witness did not remember if Mst.
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Shamim Akhtar accused was produced before the Court on 2-5-1980. According to him she remained in his custody on the night between 30-4-1980 and 1-5-1980 and was produced before the Magistrate on 1-5-1980 and the Court ordered for her production on 2-5-1980. It is admitted by him that from 30-4-1980 to 2-5-1980 Mst. Shamim Akhtar remained in his custody. According to him he had recorded the statement of Mst. Shamim Akhtar accused in the other case on 30-4- 1980. It is admitted by him that Mst. Shamim Akhtar accused had been continuously making the statement in favour of Muhammad Yaqoob accused. It is denied by him that the Court had not directed that Mst. Shamim Akhtar accused be produced on 2-5-1980. At that stage the witness stated that Muhammad Iqbal P.W. Had not produced Mst. Shamim Akhtar accused and in fact she was recovered from the Baithak of Allah Bakhsh. At the time of recovery said Allah Bakhsh was not present. He denied the defence suggestion that he had colluded with Muhammad Iqbal P.W. And others the accused named in the case registered at the instance of Muhammad Yaqoob accused and for that reason he had not arrested any one of them. It is further denied by him that with that purpose, the case registered on the statement .Of Muhammad Yaqoob accused was cancelled and Muhammad Yaqoob and Mst. Shamim accused were falsely challaned at the instance of Muhammad Iqbal P.W. And others. Volunteered that the case registered on the statement of Muhammad Yaqoob accused was found false during the investigation. He did not remember if there was any new sheet in the Nikah Register secured during the investigation. He denied the suggestion that the copy of Nikahnama Exh.P.A. Did not tally with the contents of Nikah Register. He admitted that Muhammad Boota Sub-Inspector is brother of Muhammad Yaqoob accused but denied the suggestion thal in the year 1975 he was posted in C.I.A. Sargodha under said Muhammad Boota S.I. It is further denied that the said Muhammad Boota S.I. Had reported to the higher officers against him for corruption. 10. Muhammad Yaqoob accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations. According to him Mst. Shamim Akhtar accused was never married with Muhammad Iqbal P.W. When asked why this case was made against him and why the P.Ws. Had deposed against him, he stated as under:- "I had contracted marriage with Mst. Shamim Begum, my co-accused on 20-4-1980. Thereafter myself and Mst.Shamim Begum have been performing marital relations. Since the uncle and other relatives of Mst. Shamim Begum did not agree to my marriage with her, therefore, the uncle of Mst. Shamim Begum had lodged a false case against myself and the co-accused. The fact of matter was that on 23-4-1980 Muhammad Yousaf, Inayat, Allah Bakhsh and Muhammad Iqbal had abducted my wife Mst. Shamim Begum from my house in my absence. On 30-4-1980, a case was registered against the above-said persons at my instance at P.S. Gulberg, Faisalabad. However, the police had cancelled the said case in collusion with the said accused. The present case was registered only to create a defence for the accused of said case. After the cancellation of case, I had lodged a complaint against the said acccused who are being tried in this Court and the case is fixed for today." 11. Mst. Shamim Akhtar accused in her statement recorded under section 342, Cr.P.C. Also denied the prosecution allegations. According to her she had never contracted marriage at any time with Muhammad Iqbal P.W. And Nikahnama, dated 11-4-1980 Exh.P.A. Was a forged document. According to her she had filed a suit for jactitation of marriage against Muhammad Iqbal P.W. Which was decreed in her favour. She denied the prosecution allegations that from 11-4-1980 to 22- 4-1980 she had been performing marital relations with Muhammad Iqbal P.W. She stated that from 23-4-1980 to 30-4-1980 she was kept in illegal detention by Muhammad Iqbal P.W. And he had been committing Zinabil-jabr with her throughout this period. On 30-4-1980 she was recovered by the police during the investigation of the case registered at the instance of Muhammad Yaqoob accused. According to her she remained in the custody of police since 30-4-1980 and was formally
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arrested on 3-5-1980. When asked why this case was made against her and why the P.Ws. Had deposed against her, she stated that her co-accused Muhammad Yaqoob had made a detailed statement in this behalf and she owned the same. 12. The accused persons produced 3 witnesses in defence. Allah Bakhsh (D.W.1) is Imam of the Mosque in Ghulam Muhammad Abad and he had performed the Nikah of Muhammad Yaqoob and Mst. Shamim Begum accused in the house of Muhammad Yaqoob accused. He is a Nikah Khawan also. The register of Nikah was brought by Sher Muhammad. He stated that the original Nikahnama was Exh.P.B. In the cross-case Exh.P.E. Was the photostat copy of said Nikahnama. The original bore his signatures correctly. He has deposed that he himself and Abdul Aziz had obtained the consent of Mst. Shamim Begum accused and two Perts of Nikah were duly filled by Sher Muhammad and two Perts blank of signatures of both the accused were present on blank Perts of Nikahnama. He had also signed the two blank Perts of Nikahnama. In cross-examination the witness stated that he had asked Mst. Shamim Begum if she was previously married with any other person to which she replied in negative. However, prior to…
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