Value of Apology in Open Court

PLJ 2010 FSC 14

[Appellate Jurisdiction]

Present: Syed Afzal Haider, J.

ZAFAR IQBAL--Appellant

versus

Mst. ZAREENA BIBI and another--Respondents

Crl. Appeal No. 295/L of 2006, decided on 30.7.2009.

TAUBA--

----Scope of--Central theme--Fundamental stone--Obligation--TAUBA is not only a fundamental stone of the social life of Muslims but is a remarksable concept given by the Holy Quran--Central theme in Tauba is repentance on these past wrongs and matters which are deemed reprehensible in the domain of religion--This injunction of the Holy Quran makes Tauba almost obligatory for the believing man and woman.     [P. 19] A, B & C

Sura 110 Ayat 3, Sura 24 Ayat 31, Sura 25 Ayat 70 & 71.

Tradition of the Holy Prophet (P.B.U.H.)--

----According to a tradition of the Holy Prophet (P.B.U.H.), Tauba erases the bad/evil effects of the sinful acts--Allah likes those who seek forgiveness.     [P. 19] D

Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979)--

----S. 11--Conviction and sentence recorded against appellant by trial Court--Challenge to--Allegation of Qazf--Private complaint filed--Appellant had tendered apology in the open Court--Court do not consider qualified itself to reject the apology particularly because, the appellant had during the pendency of the proceedings before the Family Court, withdrawn his application and the matter had ended there because the appellant continued pay maintenance allowance to his minor daughter which was being accepted by complainant--Court had no option but to accept apology because `Sura Nur' is the only provision to which deal with false accusation of adultery and the punishment thereof, makes things easy for those who after committing the offence of false accusation--Trial Court did not believe the allegation of Zina against the complainant inside and outside the Court--Most certainly the appellant has additionally expressed remorse and tendered apology in the open Court as well--Court accepted the apology of the appellant tendered in open Court--He had withdrawn the accusation during the pendency of Suit--His conduct for the last five years was never challenged--Appeal disposed of.

      [Pp. 20 & 21] E, F, G & H

Sh. Khizar Hayat, Advocate for Appellant.

Ch. Akhtar Hussain, Advocate for Complainant.

Mr. Arif Karim Chaudhry, Deputy Prosecutor General for State.

Date of hearing: 30.7.2009.

Judgment

Syed Afzal Haider, J.--Appellant Zafar Iqbal has through this appeal challenged the judgment dated 13.11.2006 delivered by learned Additional Sessions Judge, Gujranwala whereby he was convicted under Section 11 of the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 and sentenced to two years rigorous imprisonment with fine of Rs.1000/- or in default whereof to further undergo one month simple imprisonment.

2.  The prosecution case in brief is that complainant Mst. Zarina Bibi PW.1, filed a private complaint dated 08.02.2005, Ex.PA, under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 wherein she stated that Zafar Iqbal accused had divorced her on 08,05.2003 whereafter she filed a suit for recovery of dower as well as maintenance allowance. The accused, after putting in appearance before the Family Court, filed a written statement as well as a few applications. In one application the accused alleged that the minor female baby namely Zainab aged 1 year was illegitimate child thereby leveling imputation of Zina against her with intention to harm her reputation and to hurt her feelings. The accused also filed an application before the Family Court with prayer that DNA test of the minor Zainab be obtained through Court in order to ascertain the legitimacy of the minor baby. The complainant filed a detailed written reply to the said application. The complainant inter alia urged that since the accused was paying the monthly maintenance allowance of his minor daughter so the application for DNA test was mis-concerned and was liable to be dismissed. However the accused withdrew his application from the Family Court, Gujranwala meaning thereby that he acknowledged the paternity of the minor daughter. In this way, it was asserted by the complainant that the accused notwithstanding withdrawal of offending application had committed an offence of Qazf. She further stated that the accused leveled false allegation of zina against her outside the Court premises of Gujranwala on 15.05.2004 in the presence of two witnesses namely Asghar Ali and Muhammad Anwar. The complainant moved an application to the SHO Police Station Civil Lines, Gujranwala for registration of criminal case under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 against the accused but to no avail. Hence she filed the private complaint.

3.  The learned trial Court after recording preliminary statement of the complainant sent the complaint to the learned Judicial Magistrate, Gujranwala for enquiry under Section 202 of the Code of Criminal Procedure. The learned Judicial Magistrate after recording cursory statements of three witnesses submitted inquiry report dated 28.02.2005 to the effect that prima-facie offence of Qazf was made out against accused Zafar Iqbal.

4.  The learned trial Court charged the accused under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 on 29.04.2005. The accused did not plead guilty and claimed trial.

5.  The prosecution produced three witnesses to prove its case. The gist of the deposition of the prosecution witnesses is as follows:--

(i)   Mst. Zarina Bibi complainant appeared as PW-.1 and endorsed the contents of her private complaint Ex.PA.

(ii)  Asghar Ali PW-.2 and Muhammad Anwer PW-.3, brothers of the complainant corroborated the statement of complainant PW-. 1.

6.  The complainant closed the prosecution evidence on 07.10.2006. Thereafter statement of the accused under Section 342 of the Code of Criminal Procedure was recorded on 14.10.2006. He denied the charges and stated that:

"to black mail, harass and derogate me in the society and also to extort money by way of such like frivolous and vexatious litigations. The title complaint has been filed by the complainant just to achieve her nefarious designs against me. She in league and collusion with PW-s, who are her real brothers as well as interested witnesses and also the witnesses at call, filed the present complaint at this belated stage to take the revenge of my second lawful marriage after giving her effective divorce on 08.05.2003".

7.  The accused appeared as DW. 1 and got his statement recorded under Section 340(2) of the Code of Criminal Procedure. He also produced Haji Fiaz Ahmed DW.2 in his defence. The gist of their deposition is as under:--

(i)   Zafar Iqbal (accused) appeared as DW. 1 and stated as follows:

      "I was married with the complainant on 23.07.1988 at Fateh Pur District Gujrat and she was divorced on 08.05.2003. I have four children form this marriage namely Madasser, Samina, Natasha and Amna. I moved an application for DNA test in the Court of Malik Shabbir Ahmad, Civil Judge/Judge Family Court, Gujranwala. I did not level allegation of zina against the complainant in the said petition. In written reply to the said application the complainant admitted that Zainab is the daughter of Zafar and Zafar is making the payment of monthly maintenance. The complainant imposed a condition that if I withdraw my application for DNA test, she will withdraw all her suits, so I withdrew the said petition. This condition of withdrawal of her suits was oral. Zarina's both brothers are witnesses in all suits, Asgher Ali is a Government Servant. No occurrence as alleged took place on 15.05.2004 and I have not stated anything as alleged. The complainant filed many cases, which are pending in Gujrat, Gujranwala and Honourable Lahore High Court, Lahore. The present complaint is false and has been filed to pressurize and black mail me."

(ii)  DW.2 Haji Fiaz Ahmad deposed that on 15.05.2004 he was present in the Court of Malik Shabbir, Judge Family Court. Gujranwala with Zafar Iqbal and no quarrel took place between the parties in his presence. No occurrence as alleged in the complaint had occurred and Zafar accused is innocent.

8.  Learned trial Court after completing the formalities of the trial returned verdict of guilt against the accused. Conviction and sentence ensued as mentioned in opening Paragraph of this Judgment. Hence this appeal against the conviction and sentence.

9.  I have gone through the record of the case and also perused the statements of witnesses of contending parties as well as the statement of accused. The relevant portions of the impugned judgment have been considered.

10.  The reasons that prevailed upon the learned trial Court to convict the appellant are contained in Paragraph 5 of the impugned judgment which is reproduced as follows:--

"So far written accusation of Zina is concerned accused has stated as D.W. 1 that he moved an application for DNA test in the Court of Malik Shabbir Ahmad, Judge Family Court, Gujranwala. That he did not level any allegation of Zina against the complainant in the said petition. That the complainant imposed a condition that if he withdraws his application for DNA test, she will withdraw all the suits, so he withdrew the application for DNA test. The said agreement was oral. So it is admitted by the accused that he moved an application for DNA test during the pendency of a suit between the parties before the Judge Family Court, Gujranwala. The application is on file as Ex.PC. It is stated in the application that he has divorced Mst. Zarina and has not performed conjugal obligations for 1¬ year; so it is necessary to determine the paternity of child Zainab Bibi through DNA test. It clearly amounts to levelling allegation of Zina against the mother of child. It is, therefore, proved from the above discussed evidence that Qazaf liable to Taazir has been committed by the accused".

11.  I have considered the case and have also heard the appellant as well as the complainant in person part from the arguments advanced by the learned counsel for the opposing parties.

12.  Appellant is present in Court. He has expressed apology in open Court and has repented for having made un-intended remarks in the application for DNA test, which he had formally withdrawn. He has stated that he sent his sister and brother to the complainant only last evening after this case had been adjourned on 27.07.2009. They had expressed apology. Learned counsel for the appellant has vehemently stressed that if the latter is sent to prison again he will not be in a position to maintain his children including the 5th child who is in the custody of the complainant. He, being the solitary bread winner of the family, will not be able to cater to the daily requirements of the four children who are in his custody. The appellant is a driver and earns his livelihood on the basis of daily wages. He has already spent approximately six months in jail which is almost one fourth of the sentence awarded to him.

13.  Learned counsel for the complainant however supported the conviction and sentence. The complainant was not prepared to accept apology tendered by the appellant. The fact that the appellant had expressed remorse and sought forgiveness was rejected by her with disdain. The appellant was willing even to a reasonable increase in the monthly maintenance allowance of the minor in custody of the complainant but this offer was also dismissed with contempt.

14.  This attitude on the part of complainant cannot be appreciated. Ayat 114 of Sura 11 of the Holy Quran proclaims in very clear terms:

(a)   "Surely, good deeds drive away the (effects of) bad things. This is a reminder for those who remember".

It is worthy of note that TAUBA is not only a fundamental stone of the social life of Muslims but is a markable concept given by Holy Quran;

(b)   Allah Almighty has, in Ayat 3 Sura 110, described Himself as Oft-returning to mercy. Not only that but Holy Quran, in Ayat 222 of Sura 2, declares that Allah loves those who seek forgiveness, pardon and promise to behave in future. The central theme in Tauba is repentance on these past wrongs and matters which are deemed reprehensible in the domain of religion. It is therefore important that we consider carefully the meaning and scope of the term Tauba for the day to day affairs of human life. Ayat 31 Sura 24 proclaims:

"And turn to Allah all of you,

O believers! so that you

may be successful".

This Injunction of Quran makes Tauba almost obligatory for the believing man and woman.

(c)   According to a tradition of the Holy Prophet P.B.U.H: Tauba erases the bad/evil effects of the sinful acts. Allah likes those who seek forgiveness;

 (d)  Ayaat 70,71 Sura 25 is still another reference to impress the significance of seeking forgiveness---Tauba---the Ayat says:-

      The Chastisement shall be don bled on the day of resurrection, and he shall abide therein in or basement; Except him who repents and believes and does a good deed; so these are they of whom Allah changes the evil deeds to good ones; and Allah is Forgiving, Merciful.

Ayat 82 Sura 20 may also be perused:--

      And most surely I am most Forgiving to him ho repents and believes and does good, thon continues to follow the right direction.

(e)   Before concluding let us ponder over Ayat 31 Sura 4:

      If you shun the basic forbidden items we will (in return) do away with your evil inclinations and cause you to enter an honourable place of entering.

(f)   Sura Nur i.e. Sura 24 which deals with false accusation of adultery and the punishment thereof makes things easy for those who repent as is clear from Ayaat 4 and 5:--

And those who accuse free women then do not bring four witnesses, flog them by giving eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgress;

Except those who repent after this and act aright, for Surely Allah is Forgiving, Merciful.

Most certainly the appellant has tendered apology in the open Court as well. I do not consider myself qualified to reject the apology particularly because the appellant had, during the pendency of the proceedings before the Family Court, withdrawn his application and the matter had ended there because the appellant continued pay maintenance allowance to his minor daughter which was being accepted by the complainant till date.

15.  In this view of the matter I have no option but to accept apology because Sura Nur ie. Sura 24, is the only provision to which deal with false accusation of adultery and the punishment thereof, makes things easy for those who after committing the offence of false accusation, repent as is clear from Ayaat 4 and 5:--

"And those who accuse free women then do not bring four witnesses, flog them by giving eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgressors;

Except those who repent after this and act aright, for Surely Allah is Forgiving, Merciful".

There is no complaint that after May, 2004 the appellant ever state anything about the character of the complainant. It might as well be added that the learned trial Court did not believe the allegation of complainant that the appellant levelled oral accusation of Zina against the complainant inside and outside the Court. Most certainly the appellant has, additionally expressed remorse and tendered apology in the open Court as well. I do not consider myself qualified to reject the apology under the given circumstances of the case.

16.  In this view of what has been stated above I accept the apology of the appellant tendered in open Court. He had withdrawn the accusation  during  the pendency  of  suit. His conduct thereafter for the last five years was never challenged. His re-assurance that he would continue supporting the minor in the custody of appellant is another factor to recommend his case. Accordingly the sentence to one already undergone will meet the ends of justice. The amount of fine of Rs. 1000/- be entrusted with the Reader of the Court for depositing the same in the State Treasury. The appellant is on bail. His surety is relieved of the liability of bonds. Criminal Appeal No. 295/L of 2006 is disposed of in above terms.

(A.S.)      Appeal disposed of.

Quashment in Qazf Case

PLJ 2010 Cr.C. (Lahore) 190

Present: Maulvi Anwar-ul-Haq, J.

STATE--Petitioner

versus

Dr. MAQSOOD HUSSAIN etc.--Respondents

Crl. Revision No. 444 of 2008, heard on 14.01.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 435 & 200--Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, Art. 3--Suo Moto case--Impugned order--Issuing warrants of respondents and proceedings--Respondent filed a complaint against several persons praying that people who have directly or indirectly contributed in instigating, supporting, organizing and publishing material allegating zina-bil-jabar on plaintiff may kindly be convicted under law of Qazaf--A case was registered on complaint of alleged victim lady against respondent u/S. 10 of offence of Zina (Enforcement of Hudood) Ordinance of 1979--She filed an application in Court of duty Magistrate stating some media persons harassed her and got an application drafted and thumb marked as result whereof case has been registered against respondent--She prayed that her statement be recorded u/S. 154 Cr.P.C. which was recorded u/S. 154 Cr.P.C.--Statement was recorded and ultimately case was cancelled--Offence of Qazaf was not made out upon a reading of entire complaint as also statement of respondent--Offence as defined in Art. 3 of Offence of Qazf (Enforcements of Hadd) Ord. VIII of 1979 has not been imputed against any of persons summoned by ASJ--Contents of FIR can be taken to be imputation of Zina against respondent by said alleged victim lady but then he himself proceeds to exonerate her completely--Case being not made out at all of Qazf liable to hadd or liable to Tazir--It may be noted that Ss. 10 to 13 of Ord. VII of 1979, have since been omitted upon promulgation of Protection of women Act, 2006--Impugned order was incorrect illegal and improper--Proceedings conducted were wholly irregular--Criminal Revision and Crl. Misc. were accordingly allowed.   [Pp. 193 & 194] A, B, C, D, E & F

Criminal Procedure Code, 1898 (V of 1898)--

----S. 200--Respondent filed a complaint against several persons praying that people who have directly or indirectly contributed in instigating, supporting, organizing and publishing material allegation zina bil jabr on plaintiff may kindly be convicted under law of Qazaf--Statutory provisions--Violation of--Section 200 Cr.P.C. Lays down that a Magistrate taking cognizance of an offence in complaint shall at once examine complainant upon oath--Substance whereof shall be reduced to writing and shall be signed by complainant and Magistrate--It is evident on face of record that without any reason recorded in writing in file ASJ despite fact that respondent was present kept on adjourning case--Other glaring fact on record is that complainant had not been examined on oath--Case is not covered by any of sub-clauses of Proviso to S. 200 Cr.P.C--This by itself is sufficient for quashment of impugned proceedings.      [P. 193] C

1996 MLD 604, ref.

Mr. Tahir Munir Malik, Addl. Advocate General, Punjab for State.

Ch. Tanveer Ahmed Hanjra, Advocate for Respondent No. 2 & 3.

Kh. Saeed Ahmed, Advocate (on behalf of Mr. Naeem Sehgal, Advocate Respondent No. 4.

Mr. Mahmood A. Sheikh, Advocate for Respondent No. 8.

Mr. Irfan Aizad, Advocate on behalf of Mr. Ibrar Majlal, Advocate for Respondent No. 11.

Ch. Ali Muhammad, Advocate for Respondent No. 12.

Mr. Aftab Ahmad Bajwa, Advocate for Respondent No. 13.

Miss Farzana Shahzad Khan, DPG.

Date of hearing: 14.1.2009

Judgment

This judgment shall decide Criminal Revision No. 444/08 and Cr.Misc. No. 1331-M/08.

2.  Proceedings of this case were initiated under Section 435 Cr.P.C. vis-a-vis the impugned order and the proceedings of the learned ASJ, Lahore. Cr. Misc. No. 1331-M/08 was also filed by one of the aggrieved persons and the matters were proceeded accordingly.

3.  On 9.4.2008 Maqsood Hussain Respondent No. 1 in both these cases filed a complaint against several persons 36 in number, named therein as defendants, with the following prayer:--

"Under these circumstances, it is most humbly prayed that the people who have directly or indirectly contributed in instigating, supporting, organizing, and publishing the material, allegating Zina-bil-Jabar on the plaintiff may kindly be convicted under the law of Qazaf in the interest of justice. As the plaintiff has been through the offence of Hadd Law so similarly the accused may also be framed under the same offence and the costs may also be awarded and other relief which the honourable Court may consider deem fit may kindly be awarded."

The complaint came up before Mr. Muhammad Bakhsh Masood Hashmi, ASJ, Lahore, on 9.4.2008. He marked the Respondent No. 1 present and adjourned the case to 11.4.2008 for his statement. On this date again his presence was marked but the case was adjourned to 18.4.2008. Against presence of Respondent No. 1 was marked and the case was adjourned to 22.4.2008. On this date, it was noted that no one is present and the case was adjourned to 29.4.2008 for appropriate ordeRs. On 29.4.2008 against it was noted that none is present and the case was adjourned to 13.5.2008. On this date, it is noted that the preliminary evidence has been partly recorded and the case was adjourned to 20.5.2008 for remaining evidence. On 20.5.2008 a counsel (unnamed) was marked present and the case was adjourned to 27.5.2008. On this date an unnamed counsel was marked present and the case was adjourned to 3.6.2008. On this date the Respondent No. 1 was marked present and his request for adjournment to produce documentary evidence was granted. On 9.6.2008 again some counsel was marked present but the case was adjourned to 16.6.2008. On this date the learned ASJ was on leave. On 23.6.2008 the Respondent No. 1 was marked present and the case was adjourned on 1.7.2008. On this date the Respondent No. 1 tendered several documents mentioned in the order and closed his evidence. The case was adjourned for arguments to 5.7.2008. On this date the learned ASJ proceeded to issue warrants of Respondents No. 1 to 14, 32 and 35.

4.  The petitioner in Cr. Misc. No. 1331-M/08 is represented by Mr. Aftab Ahmad Bajwa, Advocate. Mr. Tahir Munir Malik, Additional Advocate General assisted the Court on call while in response to notices issued in the Criminal revision several respondents put in appearance through their learned counsel as detailed above.

5.  The learned counsel representing several persons against whom the warrants were issued by the learned ASJ contend that the impugned order is without jurisdiction and void. Their contention is that provisions of Section 200 Cr.P.C. have been grossly violated. It is being vehemently argued that no case of Qazaf as defined in law stands made out upon the entire reading of the complaint. The Respondent No. 1 put in appearance on 21.7.2008 in both these cases. On his request the case was adjourned to 25.7.2008. Thereafter, he absented himself and did not put in appearance despite notices issued by this Court. The case has accordingly been heard. The learned Additional Advocate General is of the opinion that proceedings have not been conducted in accordance with the mandatory provisions of law.

6.  I have gone through the records. The details of the proceedings have already been stated above. The examination of the complaint reveals that on the complaint of Mst. Ajeeba Jabeen Respondent No. 1 case FIR No. 647 was registered at P.S. Gowalmandi, Lahore, vide Rapat No. 33 dated 6.12.2005 under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 read with Section 506 PPC. According to the contents of this FIR, the said lady stated that she is a resident of Muzaffarabad (AJK). She was injured during the earthquake and came to Lahore for treatment and is admitted in the Ward reserved for the earthquake affected persons in Mayo Hospital, Lahore. On the night of Saturday Dr. Maqsood came to her and told her to come down with her X-Ray report. She went with her X-Ray report to Dr. Maqsood where he committed "Ziadati" with her. She reported the matter to the Nurses who told her to keep quiet while the Doctor threatened her that in case she disclosed anything she will be killed. She prayed that the Doctor be proceeded against. Thereafter, she filed an application in the Court of the Duty Magistrate, Lahore, stating that on the night between 3/4-12-2005 at 10.30 p.m. she went to show her X-Ray to Dr. Maqsood who was not present. She waited for some time and thereafter the Doctor examined X-Ray and she came back to her bed. On 6.12.2005 some media persons harassed her and got an application drafted and thumb marked as a result whereof the case has been registered against Dr. Maqsood. She prayed that her statement be recorded under Section 154 Cr.P.C. The statement was recorded and ultimately the case was cancelled.

7.  Before I proceed further, I may note here that in the said complaint in para-8 the Respondent No. 1 has stated that he had been trained in the West where it is quite normal to have a cup of tea with a patient. To visit patients at home and also in private. "After her evening out with me she was harassed and victimized by the hospital staff." He has completely exonerated Mst. Ajeeba Jabeen and, in fact, has prayed that she was defamed more than him and has ended up with stating that they were in love with each other and she had been made to marry against her wishes.

8.  Section 200 Cr.P.C. lays down that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath. The substance whereof shall be reduced to writing and shall be signed by the complainant and the magistrate. It is evident on the face of the record that without any reason (at least recorded in writing in the file) the learned ASJ despite the fact that the Respondent No. 1 was present kept on adjourning the case. Of course, on a few occasions for his absence. The other glaring fact on record is that the complainant had not been examined on oath. The case is not covered by  any  of  the  Sub-Clauses  of the Proviso to Section 200 Cr.P.C. To my mind, this circumstance by itself is sufficient for quashment of the impugned proceedings. Reference be made to the case of Qari Ghulam Mustafa v. Muhammad Yunus and others (1996 MLD 604).

9.  Apart from the said violation of the statutory provisions couched in mandatory language, I am in agreement with the learned counsel for the parties that the offence of Qazf is not made out upon a reading of the entire complaint as also the statement of the Respondent No. 1. The offence of Qazf is defined in Article 3 of the Offence of Qazf (Enforcement of Hadd) Ordinance No. VIII of 1979 as follows:--

"3. Qazf. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of `zina' concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said, except in the cases hereinafter excepted to commit `qazf."

10.  I have examined the complaint and the statement of the Respondent No. 1 and in the entire complaint or the statement the offence as defined in the said law has not been imputed against any of the persons summoned by the learned ASJ. The contents of the said FIR can be taken to be the imputation of zina against the respondent by the said Mst. Ajeeba Jabeen but then he himself proceeds to exonerate her completely. I, therefore, do not find a case being made out at all of a Qazf liable to Hadd or liable to Tazir. It may be noted that Sections 10 to 13 of the said Ordinance No. VII of 1979, have since been omitted upon promulgation of Protection of Women Act, 2006, on 2.12.2006.

11.  Coming to the impugned order dated 5.7.2008 itself, I have no manner of doubt in my mind that although it is stated in the order that the learned ASJ has perused the whole file yet the impugned order itself speaks that it has been passed without examining the file and certainly without any application of mind thereto. The reason being that there is not a word in the entire complaint or the statement that any of the persons summoned by the learned ASJ can be said to have committed the offence of Qazf as defined Section 3 of the said Ordinance No. VIII of 1979.

12.  I may further note here that in the complaint, 36 persons were named as defendants. The learned ASJ has picked up Respondents No. 1 to 14, 32 and 35. There is not a word in the order as to how he has distinguished the cases of the said persons vis-a-vis the persons he has not summoned.

13.  Having, thus, examined the records, I do find that the impugned  order  is  incorrect,  illegal  and improper. All the proceedings conducted are wholly irregular. Both the Criminal Revision and Cr. Misc. No. 1331-M/08 are accordingly allowed and the impugned order dated 5.7.2008 of the learned ASJ, Lahore, issuing warrants against the persons mentioned therein is set aside and the proceedings are quashed.

(Sh.A.S.)   Revision allowed.

Punishment of Qazf is Eighty Stripes

PLJ 2013 FSC 25
[Appellate Jurisdiction]

Present: Muhammad Jehangir Arshad, J.

Mst. ABIDA BIBI--Appellant

Versus

STATE and another--Respondents

Crl. Appeal No. 88/L of 2009, decided on 18.1.2013.

Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979)--

----S. 11--Appeal against judgment--Offence of Qazf--Conviction and sentence--Challenge to--Offence u/S. 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance VIII of 1979 was proved against the accused, therefore, she was convicted under the above said offence and sentenced to R.I 2 years with whipping of 40 stripes subject to confirmation by High Court--Trial Court also imposed fine of Rs.50,000/- as compensation for payment to the complainant or in default to suffer for 6 months simple imprisonment--Even otherwise, under Amended Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance VIII of 1979, punishment forQazf is only whipping numbering 80 stripes and no punishment of either description or compensation or fine in the form of compensation is provided under the said amended Section--The sentences so awarded by the trial Court were in fact provided under the omitted Section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, VIII of 1979--Sentence of whipping in case of offence of Zina as Tazir could not be awarded after the enforcement of Abolition of the Punishment of Whipping Act, 1996--Appeal accepted.           [Pp. 26 & 27] A & B

Syed Fida Abbas, Advocate for Appellant.

Mr. Imtiaz Hussain Khan Baloch, Advocate for Complainant.

Mr. Zahid Younis, D.P.P for State.

Date of hearing: 18.1.2013.

Judgment

This appeal is directed against the judgment dated 25.08.2009 delivered by learned Additional Sessions Judge, Layyah whereby the appellant was convicted under Section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, VIII of 1979 and sentenced to 02 years. R.I with 40 stripes. She was also held liable to pay Rs. 50,000/- as compensation to the complainant or in default thereof to further undergo 06 months simple imprisonment.

2.  In view of the proposed judgment neither the facts need be mentioned nor the evidence need to be reproduced. This appeal merits acceptance on the sole ground that neither at the time of the alleged occurrence, nor filing of complaint or passing of the impugned order under Section 11 of the said Ordinance was part of Statute but the same had been omitted through Enforcement of Protection of Women (Criminal Laws Amendment) Act, 2006 which was enforced w.e.f 02.01.2006. SajidHussain Respondent No. 2 filed a complaint under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, VIII of 1979 against the appellant on 16.07.2008. However, on the completion of trial, learned trial Court came to the conclusion that the offence under Section 11 of the Offence of Qazf (Enforcement ofHadd) Ordinance VIII of 1979 was proved against the accused, therefore, she was convicted under the above said offence and sentenced to R.I. 2 years with whipping of 40 stripes subject to confirmation by this Court. The learned trial Court also imposed fine of Rs.50,000/- as compensation for payment to the    complainant   or    in    default   to   suffer   for   6   months   simple  imprisonment. Even otherwise, under Amended Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, VIII of 1979, punishment for Qazf is only whipping numbering 80 stripes and no punishment of either description or compensation or fine in the form of compensation is provided under the said amended Section. The sentences so awarded by the learned trial Court were in fact provided under the omitted Section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, VIII of 1979, which is reproduced below for ready reference:

"11.  Punishment for Qazf liable to tazir.--Whoever commits Qazf liable to tazir shall be punished with imprisonment of either description for a term which may extend to two years and with whipping not exceeding forty stripes and shall also be liable to fine."

3.  Further the sentence of whipping in case of offence of Zina as Tazir could not be awarded after the enforcement of Abolition of the Punishment of Whipping Act, 1996. Section 3 of the said Act is reproduced below:--

"3. Abolition of Punishment of Whipping.--Except in cases where the punishment of whipping is provided for as Hadd, the sentence of whipping provided under any law, rule or regulation for the time being in force shall stand abolished:

            Provided that where, on the commencement of this Act, the sentence of whipping awarded by any Court, or Tribunal has not been executed, such sentence of whipping shall stand remitted."

4.  Learned Counsel for the complainant though tried to argue that in fact the appellant was convicted and punished under the amended Section 7 of the Offence ofQazf (Enforcement of Hadd) Ordinance, VIII of 1979 yet failed to convince the Court in the light of the above noted discussion. Resultantly this appeal is accepted, the judgment of the learned trial Court dated 25.8.2009 being without jurisdiction is set-aside and the appellant is acquitted of the charge honourably. She is present in the Court. Her bail bonds are recalled. She is released from the liability of bail bonds. Copy of this judgment be sent to Mr.Sadaqat Ullah Khan, learned Additional Sessions Judge, Layyah through the learned Sessions Judge wherever he is posted, for his perusal.

(A.S.)   Appeal accepted

Zina Case Judgment

PLJ 2013 FSC 71
[Appellate Jurisdiction]

Present: Agha Rafiq Ahmed Khan, C.J. and Dr. Fida Muhammad Khan, J.

MUHAMMAD ASHIQ--Appellant

versus

Haji ABDUL RAZZAQ & other--Respondents

Crl. Appeal No. 12/I of 2011, decided on 5.3.2013.

Offences Qazf (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--

----Ss. 3 & 7--Offence of Qazf--Allegation of--Appellant committed Zina with complainant--Petitioner had not appeared before the Court and had not made any statement--Though the complaint allegedly filed by her was found false by the police, the Court did not give its positive finding about her to be a liar nor mentioned anywhere that the said complaint was false--Similar is the position of other respondents about whom no positive findings of the Court are available on record--Para 21 of the judgment passed in FIR case has categorically referred to the statement of the respondents/petitioner wherein she had interalia admitted that she had not stated in her statement u/S. 161, Cr.P.C. that accused had committed intercourse with her--That admission has not been contradicted/confronted by the appellant--Mere complaint bearing photograph of someone is not legally sufficient to prove its authenticity--Whole record further shows and refers to various disputes in-between the parties--Appellant and his co-accused have been acquitted due to discrepancies and doubts in the case of prosecution in FIR case and no finding of the Court in respect of the said respondent or any other witness/respondent is available to show that any one of them has given a false statement--It refers to some patch up between the parties and to the fact that the complaint allegedly filed by respondent/complainant was dismissed as withdrawn--The said complainant/respondent never appeared before the Court and so did not make any statement nor made any allegations against anyone, including the appellant--The judgment relied upon by counsel for the appellant is distinguishable in facts and circumstances and has no relevance to the instant case wherein no statement of the respondent was ever recorded. She did not even appear before the Court--Impugned order is well reasoned and is netiher perverse, arbitrary nor frivolous and calls for no interference--Appeal dismissed.     [P. 74] A & B

Mian Ashfaq Ahmed Sial, Advocate for Appellant.

Nemo for State.

Date of hearing: 4.3.2013.

Judgment

Agha Rafiq Ahmed Khan, C.J.--Appellant Muhammad Ashiq has preferred this appeal against order dated 21.01.2009 passed by the learned Additional Sessions Judge, Lodhran, whereby his complaint has been dismissed in limine. The said complaint was filed by him against the respondents under Section 7 of the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance).

2.  Briefly stated Mst. Kalsoom Mai, respondent, on the instance of Haji Abdul Razzaq respondent, allegedly, filed a petition under Sections 22-A and B, Cr.P.C. for registration of a criminal case with the allegation that the appellant Muhammad Ashiq, Atta Muhammad and Muhammad Yousaf took her in the sunflower crop and committed zina-bil-jabr with her. However, afterwards, during inquiry of the said petition, her allegations in the said complaint were found false by the local police. Subsequently, the same was dismissed as withdrawn on 11.05.2007. The appellant feeling aggrieved submitted petition under Section 7 of the said Ordinance before Illaqa Magistrate and requested that the respondents/accused be summoned to face trial and be dealt with in accordance with law. It was sent to the learned Additional Sessions Judge,Lodhran who called for record of the case and while perusing the record and examining the evidence, he, interalia, observed that Mst. Kalsoom Mai respondent had filed that petition under Sections 22-A and B of,Cr.P.C. on 26.04.2007 for seeking direction for registration of case against the present appellant and others. However, as indicated by the Order Sheet dated 05.05.2007 the Court was informed by clerk of counsel of petitioner that compromise had been effected but, since the petitioner had not appeared, the petition was adjourned on his request for 11.05.2007. The petitioner/respondent Mst. Kalsoom Mai was also summoned for the said date. However, on 11.05.2007 Malik Muhammad Javed Kalyar, Advocate withdrew the petition. The subsequent Order Sheet of that Court further indicates that the petitioner/respondentMst. Kalsoom Mai did not appear on any date in the said complaint, allegedly filed by her and a report submitted by the police in this respect also indicated that the matter had been patched up between the parties.

3.  Perusal of the impugned order reveals that the appellant/complainant of this case filed the instant complaint after about 21 months after the withdrawal of that petition and according to the learned Additional Sessions Judge, this inordinate delay in filing this complaint indicated some foul play on the part of the appellant/complainant. The learned trial Court vide the impugned order further found that the requirements of Section 3 of the said Ordinance were not fulfilled and, therefore, finding no substance in the case of instant complaint, dismissed the same in limine. Hence this appeal.

4.  We may also mention that the appellant, alongwith other co-accused, in the case FIR No. 293/2008 dated 23.08.2008, faced trial before Additional Sessions Judge, Lodhran and, vide judgment dated 17.03.2012, was acquitted.

5.  We have heard learned counsel for the appellant and anxiously perused the record with his assistance. The learned counsel while placing reliance on Altaf Hussain Vs. The State and 03 others, reported as 2005 P.Cr.L.J.758, submitted that a complaint had been filed under Sections 22-A and B, Cr.P.C. by the respondent, Mst. Kalsoom Mai wife of Haji Abdul Razzaq but that was found false by the police. He submitted that though the respondent/complainant Mst. Kalsoom Mai did not appear before the Court in that case, her counsel had appeared and the complaint filed by her contained her photograph as well. He further submitted that the impugned order suffers from misreading and non-reading of the evidence and since a case under Section 3 of the said Ordinance was fully made out in the light of evidence on record, the case be remanded for retrial.

6.  One of the respondents namely Haji Abdul Razzaq is also present. He stated that his counsel was not coming to the Court but he was not in a position to engage another counsel. He himself argued the case.

7.  We have perused the impugned order as well as the judgment passed in FIR case on 17.03.2012. It may be pertinent to mention that as envisaged by sub-sections (b) and (c) to Section 3 of the said Ordinance, it is not Qazf to prefer in good faith an accusation of Zina against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation. The relevant portion is reproduced herein-under:--

"Section 3. Qazf. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of zina concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation, or hurt the feelings, of such person, is said, except in the cases hereinafter excepted, to commit qazf.

..................

Second Exception (Accusation preferred in good faith to authorized person). Save in the cases hereinafter mentioned, it is not Qazf to prefer in good faith an accusation of zina against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.

(a)        .............

(b)        According to the finding of the Court, a Witness has given false evidence of the commission of zina or zina-bil-jabr.

(c)        According to the finding of the Court, complainant has made a false accusation of zina-bil-jabr".

8.  In the case before us, admittedly, the petitioner Mst. Kalsoom Mai had not appeared before the Court and had not made any statement. Though the complaint allegedly filed by her was found false by the police, the Court did not give its positive finding about her to be a liar nor mentioned anywhere that the said complaint was false. Similar is the position of other respondents about whom no positive findings of the Court are available on record. Para 21 of the judgment passed in FIR case has categorically referred to the statement of the respondent Mst. Kalsoom Mai wherein she had interalia admitted that she had not stated in her statement under Section 161, Cr.P.C. that accused had committed intercourse with her. That admission has not been contradicted/ confronted by the appellant. We may also add that mere complaint bearing photograph of someone is not legally sufficient to prove its authenticity. The whole record further shows and refers to various disputes in-between the parties. The appellant and his co-accused have been acquitted due to discrepancies and doubts in the case of prosecution in FIR case and no finding of the Court in respect of the said respondent or any other witness/respondent is available to show that any one of them has given a false statement.

9.  We have further perused the impugned order as well. It refers to some patch up between the parties and to the fact that the complaint allegedly filed by respondent/complainant Mst. Kalsoom Mai was dismissed as withdrawn. The said complainant/respondent never appeared before the Court and so did not make any statement nor made any allegations against anyone, including the appellant. The judgment relied upon by learned counsel for the appellant is distinguishable in facts and circumstances and has no relevance to the instant case wherein no statement of the respondent Mst. Kalsoom Mai was ever recorded. She did not even appear before the Court.

10.  In this view of the matter, we find that the impugned order is well reasoned and is neither perverse, arbitrary nor frivolous and, therefore, calls for no interference. The appeal having been found misconceived is, therefore, dismissed accordingly.

(A.S.)   Appeal dismissed

Four witnesses must be produced to prove commission of Zina

PLJ 2013 FSC 75
[Revisional Jurisdiction]

Present: Shahzado Shaikh, Dr. Fida Muhammad Khan & Sheikh Ahmad Farooq, JJ.

MUHAMMAD RAMZAN etc.--Appellants

versus

STATE & others--Respondents

Crl. Appeal No. 55/I of 2011 linked with Crl. Ref. No. 5/I of 2011, decided on 17.10.2012.

Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979)--

----Ss. 7, 3 & 4--Conviction and sentence--Challenge to--Offence of Qazf--Appellant/accused is a liar who has fabricated an allegation of commission of zina against the complainant/illegitimacy of her daughter which is not at all supported by the four witnesses as required u/S. 3 of the Qazaf Ordinance--Appellant has made an allegation and has obviously failed to bring four witnesses in its support, thus he has been rightly found guilty of committing the offence of Qazaf by the trial Court as envisaged by the Ordinance and has been properly convicted and sentenced--It is neither perverse nor arbitrary and calls for no interference whatsoever by High Court--Conviction of appellant was maintained u/S. 7 of the said Ordinance and uphold the punishment of 80 stripes as Hadd as awarded by Additional Sessions Judge, vide and dismiss the instant appeal.      [P. 81] A, B, C & D

Mr. Qausain Faisal Mufti and Mr. Muhammad Sharif Janjua, Advocates for Appellant.

Raja M. Sattarullah, Advocate for Complainant.

Dr. Muhammad Anwar Gondal, Addl. P.G. for State.

Date of hearing: 17.10.2012.

Judgment

Dr. Fida Muhammad Khan, J.--This appeal filed by Muhammad Ramzan is directed against the judgment dated 08.10.2011 passed by learned Additional Sessions Judge. Rawalpindi, whereby he has convicted the appellant under Section 7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to suffer eighty stripes as Hadd.

2.  The learned Additional Sessions Judge. Rawalpindi has sent Criminal Reference No. 5/I of 2011 for confirmation of the sentence.

3.  Since both the matters arise out of one and the same judgment, we would like to dispose of both the matters by this single Judgment.

4.  Brief facts of the case are that Mst. Sajida Bibi filed private complaint under Sections 5 and 7 of the said Ordinance before the District and Sessions Judge, Rawalpindi wherein she alleged, inter-alia, that her marriage was solemnized with Muhammad Javed son of Darya Khan and out of this wedlock, a female child was born on 04.10.1979. However, Muhammad Javed her husband died in the year 1981 and after his death, the mutation of inheritance of deceased Muhammad Javed was sanctioned and a share of property was transferred in the name of Fozia on account of her being the legal heir of deceased Muhammad Javed. Thereafter, the accused Muhammad Ramzan alongwith other co-accused (since P.O.) filed a suit for declaration and injunction before the Court of learned Civil Judge, Rawalpindi. In the plaint of aforesaid suit, the accused have mentioned in Para No. 2 that Fozia is not legitimate child of deceased Muhammad Javed. Thus, they have committed an offence falling within the ambit of allegation of Zina/Qazaf against the complainant.

5.  After recording the preliminary evidence, the learned trial Court formally charged the accused Muhammad Ramzan under Sections 5 and 7 of the said Ordinance. He denied the charge and claimed trial.

6.  The prosecution produced four witnesses at the trial to prove its case. A gist of their evidence is mentioned hereinunder:--

*          PW.1 is Mst. Sajida Bibi, complainant. She reiterated the same facts as she had got recorded in her private complaint.

*          PW.2 Abdul Rasheed, who is father of Mst. Sajida Bibi and PW.3/Muhammad Younas corroborated the statement of complainant.

*          PW.4 Imran Mehmood, who is Secretary, Union Council, Ghazan Abad, produced birth certificate of Mst. Fozia Parveen as (Ex.PB) and birth register as (Ex.PB/1).

7.  The learned trial Court, thereafter, recorded statement of the appellant/accused Muhammad Ramzan under Section 342, Cr.P.C. wherein he denied the prosecution allegation and pleaded innocence. In answer to the question, "why this case against you and why the PWs have deposed against you?" he stated as under:

"There are numerous civil and criminal cases pending between me and the complainant in different Courts. Therefore, the complainant has filed a false complaint against me. Younas PW had falsely deposed against me as there is also litigation against the father of Younas PW with me."

He also opted to make statement on oath under Section 340(2), Cr.P.C. However, he did not make statement on oath and, instead, produced Farzan Ahmed Khan as DW. 1. The learned trial Court on conclusion of the trial found the appellant/accused Muhammad Ramzan guilty of commission of offence under Section 7 of the said Ordinance and, therefore, convicted and sentenced him as mentioned hereinabove.

8.  We have heard the learned counsel for the appellant, learned counsel for the complainant and learned Additional Prosecutor General for State.

9.  Mr. Qausain Faisal Mufti learned counsel for the appellant contended that:--

*          the appellant made statement under Section 342, Cr.P.C. and merely on the basis of this statement, conviction cannot be recorded. He placed reliance on 2011 P.Cr.LJ.778 and PLD 2011 page 796;

*          the allegation levelled by the appellant does not fall within the definition of Qazaf as there was no mala-fide on his part and his intention was only for the purpose of property;

10.  Raja M. Sattarullah learned counsel for the respondent/complainant submitted that:

*          The appellant/accused could not produce four eye-witnesses to prove his allegation as prescribed in Section 6 of the said Ordinance;

*          It is a case of confession made, firstly, in the declaration suit and, secondly, under Section 342, Cr.P.C. and also by DW as well who was produced by the appellant/accused.

11.  We have given anxious consideration to the points raised by the learned counsel for the parties and have thoroughly gone through the evidence on record. It transpires from the record that, admittedly, the complainant Mst. Sajida Bibi was validly married to Muhammad Javed on 12.08.1976. She has duly produced Nikahnama (Ex.PA) as well. From this wedlock she gave birth to one daughter Mst. Fozia on 04.10.1979. Her husband Muhammad Javed died in 1981 and his inheritance comprising of agricultural land devolved on Fozia as his legal heir and her due share was admittedly transferred to her vide mutation. The complainant thereafter got married with Naseer-ud-Din who also died later on. The appellant Muhammad Ramzan promised to purchase the share of Mst. Fozia in lieu of Rs. 100,000/- per Kanal. However, he did not pay her any amount and instead, on 31.01.2005, he got transferred her land in his name as "Hiba". The complainant and her daughter made several applications to the concerned authorities and kept on informing them accordingly. However, in the meanwhile, Muhammad Ramzan in connivance with Mst. Zarina and Mst. Akhtar Nisa filed suit as well as petition for stay order. The said suit and petition is still pending adjudication. In addition to that Muhammad Ramzan, using his influence, deprived Mst. Fozia from her share and all the other dues as well.

12.  The stand taken by the appellant Muhammad Ramzan was based on a false allegation against the complainant wherein he alleged in the said plaint that Muhammad Javed had divorced the complainant and had neither visited her house during leave nor had performed conjugal rights with her and the complainant had given illegal birth to Mst. Fozia which made basis for her divorce.

13.  So far as the allegation is concerned that is available, on record, in written form in a plaint submitted by the appellant Muhammad Ramzan for the cancellation of mutation already executed in favour of Mst. Fozia on the basis of her being the legal heir of Muhammad Javed deceased who had died during a military operation, in Abbottabad Hospital. During the trial Muhammad Ramzan while making statement on oath admitted that he had filed a civil suit against the complainant for declaration and permanent injunctions. Regarding the allegation he maintained that it was not a false allegation and added that in fact Mst. Fozia is an illegitimate daughter of the complainant. He also stated that the Birth Certificate (Ex.PB) in respect of Mst. Fozia who was born in the year 1979 was fabricated and forged. Regarding the birth entry (Ex.PB/1) in the concerned birth register, he further stated that it was forged and fictitious and the Secretary Union Council Ghazan Abad did not satisfy the Court as the page of the said register was cut with blade. Moreover, he added, there was also no Serial No. for the entry of birth of Mst. Fozia. While responding to Question No. 8, he made the following statement:

"There are numerous civil and criminal cases pending between me and the complainant in different Courts, therefore, the complainant has filed a false complaint against me. Younas PW had falsely deposed against me as there is also litigation against the father of Younas PW with me."

He produced one Farzan Ahmed Khan as DW.1 who deposed in the following words:--

"Mst. Sajida Bibi was previous wife of Muhammad Javed. Javed divorced his wife Mst. Sajida Bibi due to the reason that he claimed that Mst. Fozia Bibi is not his legitimate daughter. Javed was employed in Pakistan Army. Javed died about after one year after pronouncement of Talaq upon the complainant. Thereafter, the complainant contracted second marriage with Naseer-ud-Din, within a period of one year. After the death of Javed, his amount of pension, gratuity etc. was given to the mother of the deceased Javed. I requested Ramzan to give land to Mst. Fozia upon which he got mutation of inheritance recorded before the Revenue Authorities'.

14.  In this connection we would like to refer to Sections 3, 5 and 6 of the said Ordinance. Section 3 reads as under:--

"Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of zina concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation, or hurt the feelings, of such person, is said, except in the cases hereinafter excepted, to commit qazf'.

...................

Second Exception (Accusation preferred in good faith to authorized person):--

Save in the cases hereinafter mentioned, it is not qazf to prefer in good faith an accusation of zina against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

(a)        A complainant makes an accusation of zina against another person in a Court, but fails to produce four witnesses in support thereof before the Court.

(b)        According to the finding of the Court, a Witness has given false evidence of the commission of zina or zina-bil-jabr.

(c)        According to the finding of the Court, complainant has made a false accusation of zina-bil-Jabr.

Section 5 reads as under:

"Qazf liable to hadd. Whoever, being an adult, intentionally and without ambiguity commits qazf of `zina' liable to `hadd' against a particular person who is a `muhsan' and capable of performing sexual intercourse is, subject to the provisions of this Ordinance, said to commit qazf liable to `hadd'.

Explanation 1.--In this section, "muhsan" means a sane and adult Muslim who either has had no sexual intercourse or has had such inter-course only with his or her lawfully wedded spouse.

Explanation 2. If a person makes in respect of another person the imputation that such other person is an illegitimate child, or refuses to recognize such person to be a legitimate child, he shall be deemed to have committed qazf liable to had in respect of the mother of that person."

Section 6 reads as under:--

"Proof of qazf liable to hadd.--(1) Proof of qazf liable to hadd shall be in one of the following forms, namely:

(a)        the accused makes before Court of competent jurisdiction a confession of the commission of the offence;

(b)        the accused commits qazf in the presence of the Court: and

(c)        at least two Muslim adult male witnesses, other than the victim of the qazf about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins Kabair), give direct evidence of the commission of qazf:

            Provided that, if the accused is a non-Muslim, the witnesses may be non-Muslims:

            Provided further that the statement of the complainant or the person authorized by him shall be recorded before the statements of the witnesses are recorded."

15.  A bare reading of the above Sections make it quite clear that the appellant Muhammad Ramzan has levelled an allegation which is well covered within the definition of Qazaf as given in Sections 3 and 5 of the said Ordinance. However, in order to prove his allegation he has not been able to being four witnesses to support his allegation, as envisaged under Section 3 of the said Ordinance. Though the allegation was made by him in a suit filed by him for declaration and permanent injunctions against the complainant, he has reiterated and reaffirmed the same allegations in the instant case as well, as mentioned hereinabove, and has stuck to the position taken by him in the civil suit. He has repeated the same allegation again and again and has also tried to support it by DW. 1 Farzan Ahmad Khan. However, it is note-worthy that as admitted by, DW.1, he is not a witness of the divorce deed. He even did not know who wrote that divorce deed. According to him, Mst. Fozia was born on 04.10.1979 when her mother Mst. Sajida Bibi was still the legally wedded wife of Javed who, according to him, divorced her on 09.06.1980 i.e. about 08 months after the birth of Mst. Fozia. He also admitted that the inheritance of the Estate of Javed had devolved upon his daughter Mst. Fozia according to her due share as being a legitimate daughter of deceased Muhammad Javed, who was legally wedded husband of complainant Mst. Sajida Bibi, against whom the false allegation of zina has been made by the appellant Muhammad Ramzan.

16.  It is crystal clear from the above discussion that the appellant/accused is a liar who has fabricated an allegation of commission of zina against the complainant/illegitimacy of her daughter Mst. Fozia, which is not at all supported by the four witnesses as required under Section 3 of the Qazaf Ordinance. The said section is based on the following Verse of the Holy Qur'aan:--

"(24:4) Those who accuse the chaste women (of fornication), but they do not produce four witnesses, flog them with eighty stripes and do not admit their testimony ever after. They are indeed transgressors.'"

17.  The appellant Muhammad Ramzan has made an allegation and has obviously failed to bring four witnesses in its support, thus he has been rightly found guilty of committing the offence of Qazaf by the trial Court as envisaged by the Ordinance and has been properly convicted and sentenced.

18.  We have perused the impugned judgment and found it well reasoned. It is neither perverse nor arbitrary and calls for no interference whatsoever by this Court.

19.  Consequently for the reasons stated above, we maintain the conviction of appellant Muhammad Ramzan under Section 7 of the said Ordinance and uphold the punishment of 80 stripes as Hadd as awarded by the learned Additional Sessions Judge, Rawalpindi vide judgment dated 8.10.2011, and dismiss the instant appeal.) The appellant Muhammad Ramzan is present in Court, he shall be taken into custody and sent to Central Jail, Rawalpindi to undergo the punishment.

20.  Consequently, the Criminal Reference No. 05/I of 2011 submitted by the learned trial Court is confirmed and answered in affirmative.

21.  These are the reasons of our short order dated 17.10.2012.

(A.S.)   Appeal dismissed