P L J 1983 FSC 227
Present: AFTAB HUSSAIN, C.J. & MALIK GHULAM ALI, J MUHAMMAD RAMZAN— Appellant
s MUHAMMAD SAEED— Respondent
Suo Moto Criminal No. 1/83 in Cr. Appeal No. 9/L of 1982, decided on 23-4-1983.
(i) Marriage —
-----Proof f—Held: Nikahanama not necessary to be relied upon or proved to establish marriage and mere statements of persons claiming to be husband and wife to be sufficient to establish Nikah and relationship of husband and wife — Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— S. 16. [P. 229] C
PLD 1982 FSC 42 re/.
Penal Code (XLV of I860)— Pakistan
- Ss. 193 & 195 read with Criminal Procedure Code (V of 1898)-— S. 476 — False evidence — Fabrication with intent to procure conviction — Offence of — Respondents cooking up false case to involve appellants on false pretext of forcible abduction — Federal Shariat Court finding statements of respondents self contradictory and false to their knowledge — Held: False statements having been made in court in attempt to prove against so many persons case of forcible abduction, case of perjury established against respondents — Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— S. 16. [P. 228 J A & B
Khawaja Muhammad Farooq, Advocate for Respondent.
Date of hearing: 23-4-1983.
Aftab Hussain, C. J.—This case started on a notice served upon the respondents under Section 476 Cr.P.C. to show cause why they should not be convicted under Section 193 PPC for making false statements in the Court of the Additional Sessions Judge, Sargodha to involve the accused in State v. Muhammad Saeed etc., (except Moulvi Muhammad Aslam and Mst. Zarin Khatoon) in a case of forcible abduction of Mst. Zarin Khatoon.
Challan under Section 10(2) and Section 16 of Zina (Enforcement of Hadood) Ordinance VII of 1979 read with Section 109 PPC was presented in the Court of Mian Muhammad Nawaz Naikhokara, Additional Sessions Judge,
, who gave the benefit of doubt to the accused persons and acquitted them of the charge by order dated 3-11-1981. Sargodha
An appeal against acquittal was filed by Muhammad Ramzan res pondent which was dismissed by this Court vide judgment dated 19th February,
1983. It was held that the case of Mst. Zarin Khatoon and Muhammad Saeed from the very beginning was that they had married each other and were husband and wife. The statements, of the respondents were also held to be self-contradictory and false to their knowledge, it was obviously a case of marriage by consent which completely excluded the possibility of there oeiflg any forcible abduction. For this reason Mst. Zarin Khatoon was herselr made an accused. An unsuccessful attempt was also made to show that the Nikannama produced in court was a forgee one and on account of this Moulvi Mohammad Aslam Nikah Khawan was also involved by the Police.
After taking into consideration all the faets it was concluded that the conduct of the two persons (Muhammad Saeed and Mst. Zarin hatoon proved beyond any shadow of doubt that they were living as husband and wife from the 15th of December, 1979 and a false case was cooked up to in volve them on a false pretext of forcible abduction. In these circumstances there can be no two opinions except that the evidence of P.W. 4 to P.W. 6 is false to their knowledge and they had falsely fixed the date of abduction as the 17th of May, 1980 although at the time she had already been married to Saeed respondent for a few months.
The learned counsel for the respondent submitted that at least a case of zina with consent was proved against Saeed and Mst. Zarin hatoon in so far as she had pregnancy of 5 months.
This argument firstly ignores the findings already referred to above and secondly cannot be reconciled with the story of Mst. Zarin Khatoon being forcibly abducted. The stand of the respondents who insist that their state ments were correct, is absolutely false.
The learned counsel further argued that Section 193 PPC would be attracted only if it is proved that the false statement was made intentionally, but in the present case none of these three persons had any knowledge that the Nikah of Mst. Zarin Khatoon had already been performed sometimes before.
This argument is without force. The information about the Nikah is not material on the question of abduction by force except to the extent that it cannot be reconciled with the story put up by the three respondents. How ever, as stated above the Nikahnama had been produced by Muhammad Saeed and Zarin Khatoon at the earliest opportunity and it was admitted in cross- examination by Muhammad Ramzan that "it is correct that the accused said that Mst. Zarin Khatoon is his wife and he would not return her".
This proves that he knew about the position of Saeed and Zarin Khatoon that they were married. These false statements were made in the Court in an attempt to prove against so many persons a case under Section 11 of the Ordinance, sentence of which is life imprisonment
The case under Section 193 PPC is established against the respondents. The learned counsel hinted that he could prove that Khan Muhammad one of the witnesses of theNikahmana was stationed at Sialkot on the date of Nikah and he was not relieved, from the post of his appointment since he was posted as Gunner in the Field Regiment Artilleiy, Sialkot.
Once the respondents insist upon the correctness of their statements made in Court on oath and these statements have been proved incorrect we do not see how can, they prove the accuracy of their statements. The learned counsel submitted that though it is not open to the respondents to produce such evidence but the respondents can prove that the Nikahnama was a forged document. This argument is hardly relevant aftei1 a finding about Nikah is also given in this Court's judgment.
It is,not necessary to rely upon or prove a Nikahnama to establish marriage. It was held in Arif Hussain and Azrah Parveen v. The State (PLD 1982 FSC 42) that mere statements of the accused persons claiming that they are husband and wife is sufficient to establish Nikah and the relationship of husband and wife.
The next question is about the sentence. The sentence provided by Section 193 PPC is inter alia seven years' imprisonment of either description. Sub-section (2) of Section 476 Cr.P.C. however provides that the High Court or a Court of Sessions inter alia can pass sentence except inter alia sentence of imprisonment exceeding 5 years. It is not neessary to consider the question whether this provision providing for imposition of a lesser sentence is applic able to the
Federal Shariat Court because we are disposed to pass even a lesser sentence in this case.
We convict the three respondents namely, Muhammad Ramzan, Rab Nawaz and Khan Muhammad under Section 193 PPC and sentence each of them to three years rigorous imprisonment.
(TQM) Order accordingly.