Judgment Defining Procedure of Qazf Complaint

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.

The Offence of Qazf (Enforcement Of Hadd) Ordinance, 1979

Ordinance No. VIII of 1979

February 9th, 1979

An Ordinance to bring in conformity with the Injunctions of Islam the law relating to the offence of qazf.
WHEREAS it is necessary to modify the existing law relating to qazf so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Quran and Sunnah;
AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action;
Now, THEREFORE, in pursuance of the Proclamation of the fifth day of July 1977, read with the Laws (Continuance in Force), Order, 1977 (C.M.L.A. Order No. l of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:-

---

1.	Short title, extent and commencement (1) This Ordinance may be called the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.   (2) It extends to the whole of Pakistan.   (3) It shall come into force on the twelfth day of Rabi-ul-Awwal, 1399 Hijri, that is, the tenth day of February, 1979.
2.	Definitions In this Ordinance, unless there is anything repugnant in the subject of context:  1[(a) "adult", "hadd" and "zina" have the same meaning as in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; and"] 1 (b) all other terms and expressions not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code or the Code of Criminal Procedure, 1898.
3.	Qazf. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishers 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. Explanation 1:- It may amount to qazf to impute zina to a deceased person, if the imputation would harm the reputation or hurt the feelings of that person if living, and is hurtful to the feelings of his family or other near relatives. Explanation 2:- An imputation in the form of an alternative or expressed ironically, may amount to qazf. First Exception (Imputation of truth which public good requires to be made or published):- It is not qazf to impute zina to any person if the imputation be true and made or published for the public good. Whether or not it is for the public good, is a question of fact. 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 the 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, the complainant has made a false accusation of zina-bil-jabr

 ²[] ²

5.	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 intercourse 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 recognise such person to be a legitimate child, he shall be deemed to have committed qazf liable to hadd in respect of the mother of that person.
6.	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 a 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 in a non-Muslim, the witnesses may be non-Muslims Provided further that the statement of the complainant or the person authorised by him shall be recorded before the statements of the witnesses are recorded.    3[(2) The Presiding Officer of a Court dismissing a complaint under section 203A of the Code of Criminal Procedure, 1898 or acquitting an accused under section 5 of the Offense of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance VII of 1979), if satisfied that the offence of qazf liable to hadd has been committed, shall not require any proof of qazf and shall proceed to pass sentence under section 7.] 3
7.	Punishment of qazf liable to hadd. (1) Whoever commits qazf liable to hadd shall be punished with whipping numbering eighty stripes.   (2) After a person has been convicted of the offence of qazf liable to hadd, his evidence shall not be admissible in any Court of law.   (3) A punishment awarded under sub-section (1) shall not be executed until it has been confirmed by the Court to which an appeal from the Court awarding the punishment lies; and, until the provisions of the Code of Criminal Procedure, 1898, relating to the grant of bail or suspension of sentence, be dealt with in the same manner as if sentenced to simple imprisonment.
8.	Who can file a complaint. No proceedings under this Ordinance shall be initiated except on a  4[] 4 or a complaint lodged in a Court by the following, namely:- (a) if the person in respect of whom the qazf has been committed be alive, that person, or any person authorised by him; or (b) if the person in respect of whom the qazf has been committed be dead, any of the ascendants or descendants of that person.
9.	Cases in which hadd shall not be imposed or enforced (1) Hadd shall not be imposed for qazf in any of the following cases, namely:- (a) when a person has committed qazf against any of his descendants; (b) when the person in respect of whom qazf has been committed and who is a complainant has died during the pendencey of the proceedings; and (c) when the imputation has been proved to be true.    5[(2) In a case which, before the execution of hadd, the complainant withdraws his allegation of qazf, or states that the accused had made a false confession or that any of the witnesses had deposed falsely, hadd shall not be enforced.] 5

 ⁶[] ⁶

14.

Lian:- (1) When a husband accuses before a Court his wife who is muhsan within the meaning of section 5, of zina and the wife does not accept the accusation as true, the following procedure of lian shall apply, namely:- (a) the husband shall say upon oath before the Court: "I swear by Allah the Almighty and say I am surely truthful in my accusation of zina against my wife (name of wife)" and, after he has said so four times, he shall say: "Allah's curse be upon me if I am a liar in my accusation of zina against my wife (name of wife)"; and (b) the wife shall, in reply to the husband's statement made in accordance with clause (a), say upon oath before the Court: "I swear by Allah the Almighty that my husband is surely a liar in his accusation of zina against me" and, after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his accusation of zina against me".   (2) When the procedure specified in sub-section (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.    7[] 7

 ⁸[] ^8
 9[] ⁹

17.	Application of the Code of Criminal Procedure, 1898. (1) Unless otherwise expressly provided in the Ordinance, the provisions of the Code of Criminal Procedure, 1898, hereinafter referred to as the said Code, shall apply mutatis mutandis, in respect of cases under this Ordinance:  10[] 10  12[ Provided that an offence punishable under section 7 shall be triable by a Court of Sessions and not by or before a Magistrate authorized under section 30 of the said Code and an appeal from an order of the Court of Sessions shall lie to the Federal Shariat Court. ] 12  14[ Provided further that an appeal by, or proceeding before the Court of Session under this Ordinance shall ordinarily be held at the headquarters of the Tehsil in which the offence is alleged to have been committed or, as the case may be, the husband who has made the accusation ordinarily resides. ] 14   (2) The provisions of the said Code, relating to the confirmation of the sentence of death shall apply, mutatis mutandis, to the confirmation of a sentence under this Ordinance.   (3) The provisions of sub-section (3) of section 391 of the said Code shall not apply in respect of the punishment of whipping awarded under this Ordinance.   (4) The provisions of Chapter XXIX of the said Code shall not apply in respect of a punishment awarded under section 7 of this Ordinance.
18.	Presiding Officer of Court to be Muslim. The Presiding Officer of the Court by which a case is tried, or an appeal is heard, under this Ordinance shall be a Muslim:

 ¹⁵[] ¹⁵

20.	Saving Nothing in this Ordinance shall be deemed to apply to the cases pending before any Court immediately before the commencement of this Ordinance, or to offences committed before such commencement.

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Source:: Manual of Hudood Laws in Pakistan, Kausar Brothers, Law Publishers, Lahore

Notes

¹   Substituted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 19 for : :

(a)	"adult", "hadd", "tazir", "zina" and "zina-bil-jabr" have the same meaning as in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; and

²   The following was omitted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 20 : :

4.	Two kinds of Qazf. Qazf may either be qazf liable to hadd or qazf liable to tazir.

³   Inserted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 21.

⁴   The following was omitted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 22 : "report made to the police".

⁵   Substituted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 23 for : :

(2)	In a case in which, before the execution of hadd, the complainant withdraws his allegation of qazf, or states that the accused had made a false confession or that any of the witnesses had deposed falsely and the number of witnesses is thereby reduced to less than two hadd shall not be enforced, but the Court may order retrial or award tazir on the basis of the evidence on record.

⁶   The following was omitted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 24 : :

10.	Qazf liable to tazir. Whoever commits qazf which is not liable to hadd, or for which proof in any of the forms mentioned in section 6 is not available, or for which hadd may not be imposed or enforced under section 9, is said to commit qazf liable to tazir.
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.
12.	Printing or engraving matter known to be of the nature referred to in section 3. Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is of the nature referred to in section 3, shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, or with fine, with any two of, or all, the punishments.
13.	Sale of printed or engraved substance containing matter of the nature referred to in section 3. Whoever sells or offers for sale any printed or engraved substance containing matter of the nature referred to in section 3 knowing that it contains such matter, shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes or with fine, or with any two of, or all, the punishments.

⁷   The following was omitted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 25 : :

(3)	Where the husband or the wife refuses to go through the procedure specified in sub-section (1), he or, as the case may be, she shall be imprisoned until:- (a) in the case of the husband, he has agreed to the aforesaid procedure; or (b) in the case of the wife, she has either agreed to go through the aforesaid procedure, or accepted the husband's accusation as true.
(4)	A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of zina liable to hadd under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

⁸   The following was omitted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 24 : :

15.

Punishment for attempt to commit offence punishable under this Ordinance. Whoever attempts to commit an offence punishable under this Ordinance or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for the offence, or with such whipping or fine as is provided for the offence, or with any two of, or all, the punishments.

⁹   The following was omitted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 26 : :

16.

Application of certain provisions of Pakistan Penal Code. (1) Unless otherwise expressly provided in this Ordinance, the provisions of sections 34 to 38 of Chapter II, sections 63 to 72 of Chapter III and Chapters V and VA of the Pakistan Penal Code, shall apply mutatis mutandis, in respect of offences under this Ordinance.   (2) Whoever is guilty of the abetment of an offence liable to hadd under this Ordinance shall be liable to the punishment provided for such offence as tazir.

¹⁰   The following was omitted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 27(i) : :

Provided that, if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefor, be convicted for that offence ¹¹[:] ¹¹

¹¹   Substituted by Offence of Qazf (Enforcement of Hadd) (Amendment) Ordinance, 1980 (Ordinance 21 of 1980), Section 2 for : ".".

¹²   Substituted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 27(ii) for : "

 ¹³[

Provided further that an offence punishable under section 7 or sub-section (4) of section 14, shall be triable by, and proceedings under sub-section (1) and (2) of the latter section shall be held before a Court of Session and not by or before a Magistrate authorised under section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court:

] ¹³

".

¹³   Inserted by Offence of Qazf (Enforcement of Hadd) (Amendment) Ordinance, 1980 (Ordinance 21 of 1980), Section 2.

¹⁴   Inserted by Offence of Qazf (Enforcement of Hadd) (Amendment) Ordinance, 1980 (Ordinance 21 of 1980), Section 2.

¹⁵   The following was omitted by Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), Section 28 : :

19.	Ordinance to override other laws. The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.

Judgment on Qazf

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