Monday, 22 September 2014

Even verbal Nikah is Nikah in Islam

PLJ 2010 FSC 222
[Appellate Jurisdiction]
Present: Syed Afzal Haider, J.
NABEEL alias RAJU MASIH--Petitioner
versus
STATE--Respondent
Crl. Revision No. 280/L of 2006, decided on 7.8.2009.
Nikah Nama--
----Registration--Principle--Even though Nikah is not registered with the Union Council, it does not mean that Nikah was not performed or Nikah had become illegal--Non-registration of a Nikah is best an offence.                [P. 233] A
Nikah--
----Islamic traditions--Legal consequences--According to the Islamic traditions Nikah is performed between a male and female adult when in the presence of witnesses one of them proposes and the other spouse accept the proposal for a consideration--Legal consequences of the marriage thereafter flow for all practical purposes.         [P. 233] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 117 & 121--Burden of Proof--Proposition--Whose ever desires a Court to give a verdict as to the culpability of an accused on the existence of facts which he asserts, must prove the existence of those facts, i.e. the burden of proof lies on the complainant--Burden of proof is said to lie on the person whose claim would fail if no evidence were given on either side--According to Art. 121 the burden of proof shift to the accused only when he claims benefit of any of the General Exceptions in the Pakistan Penal Code or any special exception or proviso contained in any other part of the same code.                [P. 233] C
Innocent Persons--
----It is an unfortunate trend that complainants with impunity involve the near relatives and the close friends of the accused in solemn proceedings--Innocent persons are made to suffer the agony of trial after facing harassment and disturbing questions during the police investigation--Poor innocent persons, in addition to spending hard earned money on their defence often loose their job during this period--In the end the unconcerned accused are acquitted with the sole satisfaction that they were not convicted--There is no mechanism to immediately compensate the innocent persons who suffered miseries on account of false involvement--Benefit of cumulative miseries of wrongfully involved persons should go to the accused and it should be presumed that the miseries suffered by his dear and near ones are part of his own miseries.     [Pp. 233 & 234] D
Competency of Court--
----Courts of criminal jurisdiction are not competent, under the law, do determine the validity or otherwise of a Nikah--It is the function exclusively of the Family Courts.      [P. 234] E
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 2(c)--Definition of "Marriage"--Marriage should not be void according to the personal law of the parties.              [P. 234] G
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 468 & 471--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, S. 10(3)--Conviction and sentence--Challenge to--Allegation--Abduction and Zina-bil-Jabr--Presumption of valid marriage--Benefit of doubt--Forgery for purpose of cheating--Using as genuine a forged document--Nikhanama--Court will then assess whether the ingredients of the Nikah were available on record without going deep into the matter because in criminal proceedings it will be enough to show that sexual intercourse was willful, the parties genuinely thought that they were validly married--Parties were Muslims and not related to each other in prohibited degree nor was there a bar of fosterage between the spouses nor was the wife pregnant at the time of marriage nor in the wed lock of an existing husband--Unlawful conjunction e.g. combining two sisters as co-wives was also not an issue in this case to make the marriage void--In the absence of prohibition on account of, a) difference of religion, or b) prohibition on account of consanguity or affinity or fosterage or, c) on ground of unlawful conjunction, the Court of criminal jurisdiction, can under certain circumstances, hold that the marriage was not void because void marriage alone does not create conjugal rights or any other right--In the absence of marriage being void a valid marriage may be presumptively proved--Immediate legal effect of a marriage, which is not void, is the legalization of sexual relationship between the parties including of course procreation of children etc.--Charge against appellant was neither proved u/S. 468 nor u/S. 471 PPC--No evidence on record that the Family Court had declared the martial document and entries in the Nikah Registers of council to be null and void and of no legal effect on or before the date on which the impugned judgment was delivered--Allegation of Zina was not established--Girl had gone to the accused of her own accord could not legally convict the appellant u/S. 10(3) of offence of Zina (Enforcement of Hudood) Ordinance, 1979 particularly when trial Court found that the girl had been writing letters and her smiling photographs alongwith the accused formed part of record--Accused had consistently, throughout the police investigation, the trial and appeal, taken up the plea of Nikah whose validity or otherwise had not been adversely determined by the Court of competent jurisdiction by then--Conviction set aside--Appellant was entitled to the benefit of doubt--Order accordingly.          [Pp. 234 & 235] F, H, I, J & K
Mr. Abdul Hannan Rana, Advocate for Appellant.
Ch. Abdul Razzaq, Deputy Prosecutor General for State.
Date of hearing: 7.8.2009.
Judgment
Appellant Nabeel alias Raju Masih through this appeal has challenged judgment dated 16.09.2006 delivered by learned Additional Sessions Judge-I, Toba Tek Singh whereby he was convicted under Section 468 of the Pakistan Penal Code and sentenced to five years rigorous imprisonment with fine of Rs. 10,000/- or in default whereof to further undergo three months simple imprisonment. He has further been convicted under Section 471 of the Pakistan Penal Code and sentenced to five years rigorous imprisonment with fine of Rs. 10,000/- or in default whereof to further undergo three months simple imprisonment. He has further been convicted under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to five years rigorous imprisonment. All the sentences have been ordered to run consecutively with benefit of Section 382-B of the Code of Criminal Procedure. However the learned trial Court acquitted four co-accused tried alongwith the appellant.
2.  Mst. Aneela Kausar abductee PW.5 aged about 16 years, daughter of complainant Asghar Ali, P.W.4, used to get instructions in Holy Quran from Jamia Islamia, Shorkot City Road, Shorkot within the area of Chak No. 327/GB. On 10.05.2005 she did not return from the Madrassa till evening whereupon the complainant went towards Madrassa in her search. On the way Muhammad Idrees told him that at about 10.00 a.m. he had seen Mst. Aneela Kausar in the company of Fakhar Masih and his daughters Mst. Sheeba and Mst. Amreena going towards Rafiqui Chowk. On inquery, Fakhar Masih told him that his mother had called Mst. Aneela Kausar for some work. After a short while one Masoom, PW.6, told the complainant that accused Raju Masih, Shahzad Masih and Fakhar Masih had taken away Mst. Aneela Kausar in a car from Raffiqui Chowk while Mst. Sheeba and Mst. Amreena returned on foot. Thereafter the complainant alongwith Muhammad Idrees and Maasoom went to the house of Fakhar Masih accused to demand restoration of his daughter. Fakhar Masih promised the return of his daughter on the next day but he did not oblige. The complainant further alleged that accused Raju Masih and Pumma Masih had abducted his daughter Mst. Aneela Kausar for commission of zina with her.
3.  The complainant informed the local Police about the incident but his report was not registered. Thereafter the complainant moved a written complaint, Ex.PG, before the Deputy Superintendent of Police Saddar Circle Toba Tek Singh. The latter directed the applicant to the police station. The application was then presented to Mushtaq Hussain, Sub Inspector on 13.05.2005 who, after endorsing it, sent it to the police station through Muhammad Arshad, Constable whereafter the crime report was formally registered with Police Station, Chotiyana as F.I.R. No. 81/2005 under Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Police investigation ensued as a consequence of registration of crime report. After completion of police investigation the Station House Officer submitted a report in the Court on 26.06.2005 under Section 173 of the Code of Criminal Procedure requiring the accused to face trial.
4.  The learned trial Court after receipt of police report framed charges against the accused on 27.05.2006 under Sections 11 & 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 as well as sections 468 and 471 of the Pakistan Penal Code. The accused did not plead guilty and claimed trial.
5.  The prosecution produced thirteen witnesses at the trial to prove its case. The gist of deposition of the prosecution witnesses is as follows:--
(i)            PW.1: Dr. Raja Nasir Iqbal had medically examined accused Raju Masih and found him sexually potent.
(ii)           PW.2: Lady Doctor Farzana Yasmeen had medically examined Mst. Aneela and observed that the vagina admitted two fingers easily. The doctor observed that "Coitus was done with the examinee".
(iii)          PW.3: Umer Hayat Constable was entrusted with the warrants of arrest, Ex.PC, of accused Mst. Sheeba, Mst. Amreena, Fakhar Masih and Raju Masih but the witness failed to trace the accused.
(iv)          Asghar Ali complainant appeared as PW.4 and endorsed the contents of his application Ex.PG.
(v)           PW.5: Mst. Aneela Kausar abductee while supporting the prosecution version alleged that Mst. Sheeba and Mst. Amreena accused visited her in the school and told her that her mother wants her back home as some guests have arrived. She sought leave from her Madrasa and accompanied them to her house. Mst. Sheeba and Mst. Amreena told her that their father and brother were present with a car at Rifiqui Chowk Shorkot Cantt. When they reached there Shehzad Masih accused forcibly pushed her in the car while Raju Masih and Fakhar Masih were already sitting in the car. The accused allegedly abducted her in the car while Mst. Sheeba and Mst. Amreena remained behind. Fakhar Masih was dropped on the way while Shehzad Masih and Raju Masih took her to Lahore where Raju Masih and Shehzad Masih subjected her to Zina-bil-Jabr. Two or three days thereafter Fakhar Masih accused, Mst. Sheeba and Mst. Amreena accused reached there. The accused forced her to sign and put her thumb impression on some papers. After 8/9 days Shehzad accused came back to his village where he was arrested by the police. After giving certain details of her continued detention and her unsuccessful escape she claimed that she was kept in a rented house in Rawalpindi for almost 4« months. She was then brought to Peer Mahal where, while she was standing in Ghausia Chowk alongwith Raju Masih accused, when the police arrested both of them. Her statement was recorded by the police and thereafter she was got medically examined. She was then restored to her parents.
(vi)          Masoom Ali appeared at the trial as PW.6. He corroborated the statement made by Asghar Ali complainant PW.4. He had allegedly seen the accused alongwith Mst. Aneela P.W.5 in Rafiqui Chowk, Shorkot Cantt: while Raju Masih was sitting in the car in which she was taken by the accused.
(vii)         Muhammad Sharif, Assistant Sub Inspector appeared as PW.7 to depose that he was entrusted the task of absconding accused. He arrested Fakhar Masih and Raju Masih alongwith victim Anila Kausar on 31.07.2005. He also recorded the statement of Mst. Anila Kausar under Section 161 of the Code of Criminal Procedure. On an application Exh.PH dated 01.11.2005 he got Raju Masih the accused medically examined for potency.
(viii)        PW.8: Rafaqat Ali, Sub Inspector deposed that on 25.06.2005 he got a proclamation warrant issued against accused Mst. Sheeba, Mst. Amreena, Fakhar Masih and Raju Masih and entrusted the same to Umer Hayat Constable for service and execution. He also prepared incomplete report in this case for submission in trial Court.
(ix)           Muhammad Hanif, Secretary Union Council appeared as PW.9 and deposed that on 19.05.2005 he was posted as Secretary Union Council No. 32 Dars Baray Mian MughalpuraLahore. Exh.PJ is the certificate which is signed by him as Exh.PJ/1. The certificate is to the effect that Nikah of Muhammad Bilal s/o Fakhar Shadi Khan r/o 694/36 GB Tehsil Kamalia district Toba Tek Singh with Mst. Anila Asghar D/O Asghar Ali R/O 694/36 GB Tehsil Kamalia district Toba Tek Singh was neither registered nor entered in Union Council No. 32. He also stated that Moulvi Manzoor Hussain s/o Zahoor Din was not a Nikah Registrar of the Union Council concerned nor was he working as Registrar in that Union Council. The certificate was signed by him for the purpose of police investigation.
(x)            PW. 10: Qari Muhammad Nawaz Chishti deposed that he was serving in Auqaf Department and was also a Nikah Registrar in Union Council No. 32 Lahore. He signed a certificate on 19.05.2005 on the request of Investigating Officer of this case to the effect that Manzoor s/o Zahoor was not serving in the Auqaf Department.
(xi)           PW.11: Mushtaq Hussain, Sub Inspector had investigated the case. He deposed that on 13.5.2005 Asghar Ali complainant presented before him an application Exh.PG which after endorsement was sent through Muhammad Arshad Constable No. 797 to police station for registration of case. He recorded statements of witnesses and inspected the spot and drafted site-plan Exh.PL without scale. On 17.05.2005, photo copy Mark H and H/1 of Nikahnama between Muhammad Bilal with Mst. Anila Asghar was taken into possession by him vide recovery memo Exh.PM which was duly attested by Muhammad Faryad and Asghar Ali PWs. The witness also stated that on 19.5.2005, SHO Police Station Chutiana deputed Nazir Hussain ASI for verification of mark H and H/1. It was found that no such Nikahnama was registered anywhere nor was any Nikah Solemnized. On 20.5.2005 he arrested Shehzad accused in this case. On 02.6.2005 he received a directive from Hon'ble Lahore High Court, Lahore to add sections 420/468 & 471 PPC in this case and the needful was done accordingly. On 27.5.2005 this witness obtained warrants of arrest of Fakhar Masih, Mst. Sheeba, Mst. Ambrina and Rajoo Masih accused. On his transfer from PS Chutiana the investigation was entrusted to some other police officer.
(xii)          PW.12: Muhammad Arshad Head Constable had formally recorded FIR, Exh.PG/1, on receipt of crime Exh.PG.
(xiii)         PW.13: Muhammad Nazir Assistant Sub Inspector deposed that he was entrusted with the duty to verify the Nikahnama between Mst. Anila Asghar and Bilal on 19.05.2005. He therefore went to see Incharge Baray Mian Dars to inquire about entry of Nikahnama between Mst. Anila Asghar and Bilal. He was informed that there was no record of such a Nikah Khawan with the name Maulvi Manzoor Hussain. The witness also visited office of Union Council No. 32 Lahore. The Secretary of Union Council No. 32 stated that Nikahnama between Mst. Anila Asghar and Muhammad Bilal was not entered in the register. The Nikahnama was found fabricated during investigation and offences u/S. 420/468/471 PPC were added.
6.  The prosecution closed its case on 18.07.2006. Thereafter the learned trial Court recorded statements of three Court Witnesses. The gist of deposition of Court witnesses is as under:--
(i)            Manzoor Hussain, Nikah Khawan appeared as CW.1 who stated that on 12.5.2005 he performed Nikah between Mst. Aneela Asghar and Muhammad Bilal (Raju old name). Muhammad Bilal produced a certificate from Imam of Badshahi Mosque that he had embraced Islam. His signature on the Nikahnama was Ex.CW.1/A. The witness further stated that on 13.5.2005 "he handed over both the spouses after reading Nikah to the Nikah Registrar Muhammad Asghar Butt".
(ii)           Muhammad Asghar Butt, Nikah Registrar appeared as CW.2 and deposed that Nikahnama between Mst. Aneela Asghar d/o Asghar Ali and Muhammad Bilal was presented before him on 13.5.2005 by Moulvi Manzoor Hussain Nikah Khawan and after checking the documents as required by law, he registered the same on 13.5.2005. He deposited the documents with the Secretary Union Council and got receipt of the same. He also handed over the documents attached with the Nikahnama i.e. affidavit and certificate regarding his acceptance of Islam to the concerned Secretary. He also issued certificate regarding this matter to the party.
(iii)          Zafarullah appeared as CW.3 and deposed that on 12.5.2005 the Nikah was solemnized between Aneela Asghar and Muhammad Bilal. He was witness of that Nikah and signed the Nikahnama alongwith Azhar Hameed and other two witnesses.
7.  Statements of accused were recorded on 19.08.2006 under Section 342 of the Code of Criminal Procedure. The accused denied the allegations leveled against them. Nabeel alias Raju Masih appellant in reply to question, "Why this case is against you and why the PWs have deposed against you?" stated as follows:--
"The case is false and the PWs have deposed against me and my co-accused falsely having their close relationship with the complainant. Infact Mst. Aneela Asghar PW have developed affairs with me much prior to the occurrence. She promised me to marry with me if I changed my religion. After when I had changed my belief from Christian to Islamic religion with my new name Muhammad Balal. Mst. Aneela Asghar PW solemnized Nikah with me with her free consent in the premises Civil Court, Lahore in the presence of the witnesses of Nikah and also sworn an affidavit with her photograph affixed on the same with her signatures and thumb impression to the effect that she had solemnized Nikah with me with her free consent. We started living as husband and wife, but when we came to know that the complainant party inconnivance with the local police is going to harass us we had preferred an writ petition in the Hon'ble Lahore High Court, Lahore against the local police and the complainant party Asghar Ali including Muhammad Arshad, Muhammad Rasheed and Muhammad Ashraf sons of Muhammad Ramzan, Muhammad Arshad s/o Asghar Ali for their harassment. A writ petition was signed and thumb marked by Mst. Aneela Aghar and myself alongwith affidavits annexed with it. We also appeared before Hon'ble Lahore High Court, Lahore for pursuing the writ petition. After registration of FIR in this case we had preferred a writ petition in the Hon'ble Lahore High Court, Lahoreagain for the quashment of this FIR and to direct the police not to harass us. On 26.7.2005 Mst. Aneela Asghar PW had appeared in the Court of Magistrate 1st Class at Lahore where she made her statement u/S. 164 Cr.P.C. and narrated that she had married with Muhammad Bilal with her free consent and that she was not abducted by any person. She had further narrated that she had left the house of her parents of her own and had married with Muhammad Bilal (myself) and had been living as his wife without any coercion. She further narrated in her statement that she had a fear from her father Asghar Ali and uncle including Faryad, Sani, AdreesCh. Afzaal, Yousaf Fauji, Masoom and Khawar that they would kill her. She had further stated in her said statement that due to her marriage with Muhammad Balal (myself) her father and others had falsely instituted this case against my husband and his relatives and the FIR be quashed. She also produced her affidavit with her signatures and thumb impression alongwith her photograph affixed on the same in the Court of the said Magistrate which I will produce in my defence. The police had apprehended me and my wife Mst. Aneela Asghar PW from our residential house at Rawalpindi. Before our arrest Mst. Aneela Asghar PW being my wife had been visiting bazar and other places for shopping and other business with her free consent. We also celebrated birth day of Mst. Aneela Asghar in that house and the photographs were also taken during that celebration which I had already submitted in the Court. Mst. Aneela Asghar PW had been sending me love letters and gifts before our marriage. Some of those letters have been produced in the Court. At the time of our arrest Mst. Aneela Asghar was pregnant for about six months. I had preferred an writ petition in the Court of Addl: Sessions Judge, Kamalia for registration of case against Asghar complainant and others that they had managed for the abortion of my child and the same is pending in that Court. I had also filed a writ petition in the Court of learned Addl: Sessions Judge, Lahore against Secretary Union Council Mr. Muhammad Hanif of U.C No. 32 Lahore for issuing a false certificate regarding the fact that the registered Nikahnama was not available in his Union Council in connivance with Asghar Ali complainant and the same is pending for adjudication. An inquiry is also pending on my application against Muhammad Hanif Secretary Union Council mentioned above before Assistant Director Local Government Lahore/Incharge Special Cell Lahore."
8.  The accused produced two Defence Witnesses in their defence. The gist of their deposition is as under:--
(i)            Abdul Haq appeared as DW. 1 stated that "he came to know about the occurrence on the day when the police arrested Shehzad Masih in this case from the village. On 10.5.2005 he was present in his home in Chak No. 694/36/GB. On that day Fakhar Masih, Shehzad Masih and other members of the family were present in their home. The police had raided the house of the accused when the family member of the accused had gone to Lahore. The accused persons left the house due to the dispute between the Muslims and the Christian on the issue of abduction.
(ii)           DW.2 Asim alias Tariq deposed that on 10.5.05 he had gone to the house of the accused at about 2.30 p.m. he remained there till 4.30 p.m. he had gone to the house of the accused to take medicine and had met accused Fakhar Masih alongwith his daughter, wife and an employee. He did not see Raju Masih accused (Shahzad). He came to know about the occurrence on 12.5.05 when the police went to the house of the accused. On 14.5.05/15.5.05 the family of the accused left their home. The accused persons had left the house due to conflict among the residents of the village about the abduction of Mst. Aneela. The accused persons are innocent in this case".
9.  Learned trial Court after hearing learned counsel returned a verdict of guilt against the accused. Conviction and sentence ensued as indicated in the opening paragraph of this Judgment. Hence this appeal.
10.  I have gone through the record of the case carefully and also perused the statements of witnesses for the prosecution, Court witnesses and defence witnesses as well as the statement of accused. Relevant portions of the impugned judgment have also been scanned.
11.  The points that found favour with the learned trial Court in convicting the accused, as enumerated in paragraphs 17 through 19, may be summarized as follows:--
(i)            Raju accused committed forgery by fabricating a forged Nikahnama and using it as genuine during investigation knowing that the document was forged; that
(ii)           Raju claimed Nikah with Mst. Aneela Asghar but he failed to prove execution of Nikah; and that
(iii)          "The alleged Nikah", according to the learned trial Court, "was performed in the territorial jurisdiction of Union Council No. 32. Even the above said Secretary Union Council has denied the presence of entry of any Nikah Registrar named as Moulvi Manzoor Hussain".
12.  The learned trial Court in paragraph 20 of the impugned judgment found that the prosecution failed to prove the allegation of abduction. It was also found that the photographs of the accused and Mst. Aneela Asghar and her letters were available on the file and that she did not allege abduction in her statement recorded under Section 164 of the Code of Criminal Procedure and further that she made no effort to run away from the custody of Raju though she had been moving about and had also visited hospital during her five month stay with accused. In the end the learned trial Court observed that Mst. Aneela had not been abducted but had eloped with Raju with her free will and consent. All the co-accused tried alongwith the appellant were consequently acquitted.
13.  An examination of the file shows however, that on 26.07.2005 Mst. Anila Asghar appeared before the Magistrate and made statement Ex.D7 in which she categorically stated:--
(i)            That her parents wanted to marry her with an aged person against her will;
(ii)           That she wanted to marry Muhammad Bilal who has embraced Islam; and
(iii)          That she has already married Muhammad Bilal on 12.05.2005 and that a false case F.I.R. No. 81/2005 had been got registered on the ground of her abduction but she was living happily with her husband Muhammad Bilal accused.
14.  It is worth noting that P.W.9 Muhammad Hanif, Secretary Union Council No. 41 had stated that the Nikahnama between Mst. Anila Asghar and Muhammad Bilal was neither registered nor entered in his Union Council. In cross-examination, however, he stated that when two Parts of the Nikahnama are deposited with the Union Council then the Secretary issues a receipt for the same. He then admitted that Asghar Butt, the Nikah Registrar, got a receipt from him after handing him over copies of Nikahnama. Mark D, D, and F which are copies of Register showing serial-wise entry of various Nikahs performed between different spouses during 18 February 2005 and 13 June 2006. At Serial No. 25 Muhammad Bilal accused is shown to have married Mst. Anila Asghar on 12.05.2005. Column No. 14 of this document shows that Parat No. 40 was received by the Secretary Union Council. The witness also admitted that at Serial No. 29 of this very document the Nikah between one Rana Zaheer Ahmad with Mst. Anam Javed was mentioned as having been registered. In this view of the matter if the entry at Item No. 29 is correct then there should be no doubt as to the entry at Serial No. 25 showing registration of Nikah between Mst. Nabila Asghar and the accused.
15.  I have also seen the record which shows that an application on behalf of the accused had been moved to summon nine persons as Court Witnesses. The accused wanted to summon the Incharge of Badshahi Mosque to establish the fact that he had adopted Islam as religion but the learned trial Court found that since the accused had already produced a certificate of his conversion to Islam so there was no need to summon the Incharge Badshahi Mosque.
16.  It is also in the evidence of Manzoor Hussain C.W.1, that on 12.05.2005 he performed Nikah ceremony between the accused and Mst. Anila Asghar in the presence of witnesses and passed on the Parats of the said Nikahnama to the Registrar for necessary action. It is by now well settled that even though Nikah is not registered with the Union Council, it does not mean that Nikah was not performed or Nikah had become illegal. Non registration of a Nikah is best an offence. According to the Islamic traditions a Nikah is performed between a male and female adult when in the presence of witnesses one of them proposes and the other spouse accept the proposal for a consideration. The legal consequences of the marriage thereafter flow for all practical purposes.
17.  It might as well be noted that Articles 117 through 121 of Qanun-e-Shahadat Order, 1984 make the proposition abundantly clear that whosoever desires a Court to give a verdict as to the culpability of an accused on the existence of facts which he asserts, must prove the existence of those facts, i.e, the burden of proof lies on the complainant? Burden of proof is said to lie on the person whose claim would fail if no evidence were given on either side. According to Article 121 the burden of proof shift to the accused only when he claims benefit of any of the General Exceptions in the Pakistan Penal Code or any special exception or proviso contained in any other part of the same Code. In the instant case the right to marry shall be presumed.
18.  The learned trial Court found that it was not a case of abduction as alleged by the prosecution and that the girl had gone of her own to the accused. The other accused were acquitted. It is an unfortunate trend that complainants with impunity involve the near relatives and the close friends of the accused in solemn proceedings. Innocent  persons   are  made  to  suffer  the agony  of  trial  after  facing  harassment and disturbing questions during the police investigation. The poor innocent persons, in addition to spending hard earned money on their defence often loose their job during this period. In the end the unconcerned accused are acquitted with the sole satisfaction that they were not convicted. There is no mechanism to immediately compensate the innocent persons who suffered miseries on account of false involvement. I feel that in such circumstances the benefit of cumulative miseries of wrongfully involved persons should go to the accused and it should be presumed that the miseries suffered by his dear and near ones are part of his own miseries.
19.  It is necessary at this stage to state that Courts of criminal jurisdiction are not competent, under the law, to determine the validity or otherwise of a Nikah. It is the function exclusively of the Family Courts. However if a question as to the liability of an accused arises and the Court has to determine his culpability under the Hudood laws, if the accused pleads Nikah to escape mischief of Zina, then Court can certainly examine the defence plea in the light of attending circumstances. The Court will then assess whether the ingredients of the Nikah are available on record without going deep into the matter because in criminal proceedings it will be enough to show that sexual intercourse was willful and the parties genuinely thought that they were validly married. The definition of the term Marriage in clause (c) of Section 2 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 contemplates that the Marriage should not be void according to the personal law of the parties. Admittedly the parties were Muslims and not related to each other in prohibited degree nor was there a bar of fosterage between the spouses nor was the wife pregnant at the time of marriage nor in the wedlock of an existing husband. Unlawful conjunction e.g: combining two sisters as co-wives was also not an issue in this case to make the marriage void. In the absence of prohibition on account of (a) difference of religion, or (b) prohibition on account of consanguity or affinity or fosterage or (c) on ground of unlawful conjunction, the Court of criminal jurisdiction, can under certain circumstances, hold that the marriage was not void because void marriage alone does not create conjugal rights or any other right. In the absence of marriage being void a valid marriage may be presumptively proved. The immediate legal effect of a marriage, which is not void, is the legalization of sexual relationship between the parties including of course procreation of children etc.
20.  In view of what has been stated above the charge against the appellant is neither proved under Section 468 nor under Section 471 of the Pakistan Penal Code. There was no evidence on the record that the Family Court had declared the marital document Mark E and Mark G and entries in the Nikah Registers of the Council Mark D, D, and F to be null and void and of no legal effect on or before 16.09.2006 i.e the date on which the impugned judgment was delivered. Under the circumstances the allegation of Zina was not established.
21.  The learned trial Court having observed that the girl had gone to the accused of her own accord could not legally convict the appellant under Section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 particularly when the learned trial Court also found that the girl had been writing letters and her smiling photographs alongwith the accused formed part of record of this case. The accused had consistently, throughout the police investigation, the trial and the appeal, taken up the plea of Nikah whose validity or otherwise had not been adversely determined by the Court of competent jurisdiction by then.
22.  In view of what has been stated above the conviction recorded under Section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and Sections 468 and 471 of the Pakistan Penal Code and the consequential sentences are hereby set aside. The appellant is entitled to benefit of doubt. He has already suffered incarceration for two years and four months apart from suffering the hardships of the trial alongwith innocent members of his family. He is present on bail. His sureties are relieved and the appellant is free to move about.
(A.S.)      Order accordingly.

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