P L D 1996 Federal Shariat Court 15 (PLP)

FIDA MUHAMMAD KHAN, J.--This Criminal Appeal preferred by Mst. Nuzhat Jabin, daughter of Muhammad Sharif, resident of 106, D-Block Vehari City, District Vehari (hereinafter called the appellant) is directed against the judgment dated 27-2-1994 passed by learned Additional Sessions Judge, Multan, whereby he has acquitted the respondents namely (1) Jamil Hussain Shah son of Ghulam Hussain Shah and (2) Sh. Mumtaz Ali son of Tai Din of the charge under section, 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, hereinafter referred to as the said Ordinance, read with sections 500 and 506-B, P.P.C., in a private complaint case filed by the appellant before the learned Sessions Judge, Multan.

2. Briefly stated the circumstances that ultimately resulted in the present appeal started when the respondent Jamil Hussain Shah filed writ petition, bearing No. 2244/91, before the Honourable High Court, Multan Bench on 28-1-1991 against (1) Superintendent of Police, Vehari, (2) S.H.O., Daniwal and (3) one Almas, brother of the appellant, through Khadim Nadeem Malik, Advocate wherein levelling grave charges against them, he inter alia stated that he (i.e. Jamil Hussain Shah) resides in H-Block, City Vehari while Almas (brother of appellant Mst. Nuzhat Jabin) resides in D-Block. He alleged therein that S.P. Vehari is a bad reputed man and oftenly comes to the house of Almas where he commits Zina with his sister. He also alleged that he and one Sheikh Mumtaz Ali, who is resident of D-Block, objected on the activities of S.P. Vehari and protested with Almas.

3. The Honourable High Court, Multan Bench heard the matter and called for a report from the Deputy Inspector General of Police, Multan in this connection, vide order dated 28-8-1991. The said D.I.-G. Police, after conducting the inquiry, reported that during the proceedings taken by him, Syed Jamil Hussain Shah (petitioner in the said writ petition) could not substantiate or prove the allegation levelled by him. The Honourable High Court by allowing all the concerned parties to take up any proceeding and remedies which are available to them under the law, disposed of the said writ petition vide order dated 7-9-1991.

4. The appellant feeling perturbed by the allegations made in the said writ petition by the respondents as well as by repetition of the same by them during the proceedings of the inquiry before the Deputy Inspector-General of Police, Multan and also subsequently publishing of the same in daily ' Jang' and daily 'Nawa-i-Waqt of 5-9-1991, filed the aforementioned complaint before the learned Sessions Judge, Multan on 4-2-1992 wherein she prayed for necessary action against the respondents under the law. She appended with the complaint copies of the said writ petition, copies of the statement given by the respondent before D.I.-G., Multan and News items published in daily 'Jung' and daily ' Nawa-i-Waqt' . The learned Sessions Judge after going through the evidence on record came to the conclusion that the charge of Qazf was not proved against the respondents and consequently acquitted them vide the impugned judgment. Being aggrieved, the appellant challenged the same vide the present appeal.

5. At the trial four prosecution witnesses were examined. P.W.1 is Khadim Nadeem Malik, Advocate, Supreme Court who had filed the above writ petition on behalf of respondent No. 1 Syed Jamil Hussain Shah. He deposed that Syed Jamil Hussain Shah had engaged him as a counsel and had instructed him to file the said writ petition which was dictated by him on his instruction and in his presence. He further deposed that the affidavit appended with the writ petition had also been signed by him in token of correctness of facts contained in the writ petition. The said writ petition Mark-A was finally disposed of on 7-9-1991. In cross-examination he clarified that Jamil Hussain Shah did not mention the name of any woman at the time of dictating the writ petition by him. He admitted that the affidavit appended with the said writ petition was typed at the instructions of petitioner/respondent Syed Jamil Hussain Shah. He rejected the suggestion that the circumstances mentioned in the said writ petition were not dictated at the instructions of petitioner/respondent Syed Jamil Hussain Shah. P.W.2 is Ghazanfar Ali Shahi who is Staff Reporter, Nawa-i-Waqt. He deposed that he had received the copy of aforementioned writ petition and had written the news according to the contents of the same and had got it published in daily Nawa-i-Waqt dated 5-9-1991. In cross-examination he stated that he could not recollect as to who had given him the copy of said writ petition. He has volunteered that he did not remember as to whether anybody handed the same over to him or he had himself collected it from the office of Honourable High Court. P.W.3 is Mubarak Athar Chaudhry, S.P. He deposed that on 2-9-1991 when he was posted as S.P. Crime Branch, Multan, he received written order from the D.I.-G., Multan and thereupon he summoned Syed Jamil Hussian Shah (respondent) in connection with the Writ Petition No.2244/91 who appeared before him alongwith one Muhammad Anwar and their statements were recorded in his presence, under his dictation, and he had attested the same. He further stated that during recording of statement of Syed Jamil Hussain Shah he had put him questions and the same were replied by him and he had put his signature on the same in token of its correctness. The said statement is Exh.PA. In cross-examination he volunteered that he had taken respondent Syed Jamil Hussain Shah to Multan and had produced him before the D.I.-G. alongwith his statement which had been recorded at his dictation. P.W.4 is the appellant Nuzhat Jabin, the complainant. She deposed that she is a graduate, unmarried and at the time of filing of the said writ petition by Syed Jamil Hussain Shah she was teacher in Bilal English Medium School. On 5-9-1991 the Headmistress of the said school summoned her in her office and she showed her the copies of daily ' Jang' and daily ' Nawa-i-Waqt' and thereafter she terminated her service and when she reached home, a number of men and women were present there and all her family members had become perturbed due to the said news item published in daily "Jang" and daily "Nawa-i-Waqt". She produced certified copy of the said writ petition Exh.PB, certified copy of affidavit tendered by Sheikh Mumtaz Ali, respondent, Exh.P.C., attested copies of the orders passed by Honourable High Court, Multan Bench, Exh.PB, Exh.PE, Exh.PF and Exh.PG and a copy of her complaint Exh.PH. She was subjected to a very lengthy cross?examination. She admitted the suggestion as correct that the aforementioned writ petition was filed against her brother Almas and she volunteered that she is the sister of Almas and. false allegation was levelled against her.

6. The respondent Syed Jamil Hussain Shah made a statement under section 342, Cr.P.C. wherein he denied the allegation and pleaded innocent. Replying to a question put to him regarding engagement of Mr. Khadim Nadeem Malik as his counsel, he stated that he did not sign the writ petition Exh.PB and also not signed the affidavit, although he engaged Mr. Khadim Nadeem Malik, Advocate as his counsel for the release of his brother Syed Najmul Hassan who was at that time under the illegal detention of police, Police Station Daniwal. He denied to have levelled allegations, in the said writ petition, that S.P. Vehari visit the house of Almas and commits Zina with his sister. He however admitted in reply to another question that Hon'ble High Court, Multan Bench had ordered the then D.I.-G. Police, Multan region to enquire personally. He denied to have made statement Exh.PA before P.W.3 Mubarak Athar and stated that he was not authorised to conduct inquiry as he was not appointed as Inquiry Officer by the Hon'ble High Court, Multan Bench. He further stated that he had made statement before D.I.-G., Multan region that he would not appear before P.W.3 and D.I.-G. had directed him to appear before Office Superintendent of the Office of D.I.G. He denied to have published the news item about the allegation made in the said writ petition in the press vide daily Nawa-i-Waqt, dated 5-9-1991. He also denied the fact that he had appeared before the Hon'ble High Court, Multan Bench alongwith his counsel. Replying to a question "why this case against you", he made a statement in the following words:

"I am law-abiding citizen of Pakistan and enjoy good reputation in the society. I had contested the local body election from my Halqa. I am Chairman of Ushr and Zakat Committee of my Halqa. The people of my Halqa always contact me for redressing of their grievances. I always help them in this respect. The people of my Halqa had complained against Sardar Saeed Gul, the then S.P., Vehari and one Almas. I, therefore, approached the abovementioned S.P. and asked him to mend his ways and the people of Vehari were not happy with his conduct and character. He became inimical towards me and on his behest this false case has been concocted against me alongwith other cases. The P.W.3 is the colleague of said S.P. and for that reason, he deposed falsely against me at the instance of said S.P. while the other P.Ws. deposed against me just to oblige the abovementioned S.P. The respondent Mumtaz Ali also made a statement under section 342, Cr.P.C. wherein he denied the allegation and pleaded innocent. In reply to a question "why this case against you and why the P.Ws. have deposed against you", he stated as mentioned hereinunder:

"I had been Chairman and Vice-Chairman of Municipal Committee, Vehari. Inhabitants of Vehari City were not happy with the conduct and character of Sardar Saeed Gul, the then S.P., Vehari. I, therefore, protested against him and brought the people on road and managed the strikes against him. He for that reason became inimical towards me and at his instance, I have been roped in this complaint case. The P.Ws deposed against me just to oblige against me for the purpose of blackmailing. " They produced one Muhammad Anwar as D.W.1 who was duly cross?examined.

7. We have heard the learned counsel for the parties and have perused the record with their assistance. Before embarking upon discussion on the instant case in the light of evidence brought forth on record it is pertinent to mention that ' Qazf' literally means to accuse, to defame. Technically speaking it has been defined in section 3 of the Offence of 'Qazf' (Enforcement of Hadd) Ordinance, 1979 in the following words: "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." It means that actually Qazf is an unproved allegation that a person has committed Zina. This is a very serious charge and a reference to this has been made in Verse 4 of Sura Al-Noor in the following words: "And those who accuse honourable woman out do not bring four witnesses, flog them (with) eighty stripes and never (again) accept their testimony. They are indeed evil-doer, except those who afterwards repent and made amends." It has been unanimously held by the Muslim jurists that although the above verse mentions the allegation made about the women, it also includes the imputation of Zina to men. Likewise the offence of imputation though attributed to men, it also includes the women who commit this offence. As such the offence of imputation of Zina and its punishment is equally applicable to male and female slanderer and slandered alike. It may be appreciated that the object of this Islamic Injunction is to check the slanders or scandalous suggestions about men and women if sufficient evidence could not be produced to prove the allegation of commission of Zina in the Court of law, as required. It follows that if anybody wants to make any allegation that an individual has committed Zina he must support the same by the evidence twice as strong as would ordinarily be required for other matters including even in murder cases. That is, four eye?witnesses would be required instead of two, failing which the slanderer besides the sentence of whipping numbering eighty stripes as Hadd punishment would also be deprived of his fundamental civic right to appear as a witness in all matters all his life, unless he repents and shows that he is sorry for what he did, and makes proper assurance that he would not in future support by his statement anything for which he does not have the required evidence and thus he reforms himself. The Holy Qur'an has termed the persons involved in unsupported slanders or a charges of Zina against chaste persons as "wicked transgressors" or "evil-doers". All this shows the gravity of the offence of "Qazf". To make imputation of Zina concerning any person as "Qazf" it is however necessary that the accusation of Zina should be clear in unambiguous words.

8. Now coming to the facts of this case, it may be mentioned that so far as the respondent Sheikh Mumtaz Ali is concerned his case is distinguishable. Although, as it appears he was also associated with Syed Jamil Hussain Shah in carrying out the procession against S.P., Vehari and has also appended affidavit Exh.PC with the writ petition Exh. PB, it is worthmentioning that he has not made a specific allegation of Zina against the appellant in unambiguous words. The relevant portion of his said affidavit is reproduced here as follows.-- There is nothing else on the record to show that he had made any statement before any one else. Learned counsel for the appellant has also conceded in this respect and does not press the appeal to his extent only. Therefore, in view of the reasons stated above. We dismissed the appeal to his extent and maintained the order of his acquittal vide our short order dated 14-1-1996.

9. Regarding the case about Syed Jamil Hussain Shah, it transpires from the record that certified copy of Writ Petition No.2244/91 alongwith certified copies of affidavit by Jamil Hussain Shah is Exh. PB, attested copy of statement of Jamil Hussain Shah before P.W. 3 is Exh. PA, attested copies of orders passed by Honourable High Court, Multan Bench, hereinafter referred to as the Hon'ble Bench, on 28-8-1991, 31-8-1991 and 7-9-1991 are respectively Exh.DB, PE and PF and copy of complaint is Exh.PH.

10. So far as publishing of the allegation of Zina in daily Nawa-i-Waqt is concerned we have found that the evidence produced by the prosecution in this respect is not conclusive enough and it cannot therefore be definitely established that Jamil Hussain Shah, respondent had any connection with the same. Although as mentioned by him in para. 2 of his affidavit he was Press Reporter to weekly Mashreq News, there is nothing to show that he had been instrumental in getting the said news item published in daily 'Nawa-i-Waqt' or daily 'Jang'. The statement made by P.W.2 Ghazanfar Ali Shahi is also not helpful in this connection. The cross-examination portion does not reveal his connection either with Jamil Hussain Shah or publishing of the news item by him in the said dailies.

11. Regarding the institution of writ before the Hon'ble Bench by Jamil Hussain Shah, respondent it may however be pertinent to mention that although he has denied the allegation to have got it instituted, it is to be observed that the statement made by him under section 342, Cr.P.C is self-contradictory in this respect and as such does not inspire confidence. For example he has denied to have engaged Mr. Khadim Nadeem Malik, Advocate as his counsel for the said writ petition. However, he has admitted that he had engaged him as a counsel for the release of his brother Syed Najmul Hassan who was at that time under the illegal detention of police, Police Station, Daniwal. A copy of the said writ petition if it was other than Exh.PB has however not been placed by him on record, in his defence, to substantiate his version. At the same time, in reply to question No.5 he also admits that Hon'ble Bench had ordered the then D.I.-G. Police to enquire personally. It may be clarified here that the said writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was filed for direction to respondents i.e. namely Superintendent of Police, Vehari the S.H.O., Police Station, Daniwal and Almas, brother of appellant, not to harras the petitioner and his family members illegally without any justification and also for direction for registration of a case against the respondent at Police Station, Daniwal. However, referring to the background that allegedly developed the inimical attitude of respondents, he made the imputation of Zina to S.P., Vehari with the sister of Almas in unambiguous words. It transpires from the order of the Hon'ble Bench Exh.DB that D.I.-G., Multan was directed to personally enquire into the matter and submit his report to the Court within one week. This portion of the order pertains to enquiry about the allegation of Zina imputed to S.P., Vehari with the sister of Almas as mentioned above. The said order also shows that S.H.O., respondent No.2 in the said writ petition was asked to appear before the Bench on 31-8-1991 to state as to why Najmul Hassan, brother of Jamil Hussain Shah, was being illegally detained by him. The order Exh. PE passed by the Hon'ble Bench reveals that, as stated by the S.H.O. concerned, Najmul Hassan, brother of Jamil Hussain Shah was not in police custody. The order Exh.PF passed by the Hon'ble Bench also reveals that the D.I.-G. made a report that during the proceedings taken by him Syed Jamil Hussain Shah could not substantiate or prove the allegation levelled by him. Thus it is quite apparent that Jamil Hussain Shah had engaged Mr.Khadim Nadeem Malik, Advocate and had made the allegation of Zina as well as the allegation of illegal custody of his brother Najmul Hassan and his denial in respect of the former allegation is not correct. Mr. Khadim Nadeem Malik has appeared as P.W.l and has deposed that the said writ petition was dictated at the instructions of Syed Jamil Hussain Shah, respondent.-- He has also deposed that the affidavit annexed with the said writ petition was also typed at his instructions. The aforementioned order Exh.DB of the Hon'ble Bench clearly establishes the fact that Syed Jamil Hussain Shah was present in person with P.W.1 Khadim Nadeem Malik on the date of hearing. It also transpires from the said order that he was duly warned that if the allegation levelled by him were found false then the same could result in serious consequences. As a natural corollary it follows that it was after consultation with Jamil Hussain Shah that P.W.1 Khadim Nadeem Malik made a request that D.I.-G., Multan Range be directed to enquire into the allegations and submit a report to the Court about the same and the order was accordingly passed by the Hon'ble Bench wherein the D.I.G., Multan Range was asked to enquire personally and submit his report within one week. Thereafter D.I.-G., Multan had directed Mubarak Athar, S.P. to make inquiry about the allegation of Zina attributed to S.P., Vehari with the sister of Almas as alleged in the said writ petition.

12. It is not at all believable that without getting instructions from his client Jamil Hussain Shah, P.W.1 Khadim Nadeem Malik, Advocate could have gone to the extent of filing a writ petition containing those serious allegations on his behalf, without any rhyme or reason. The available record shows no reason why he unnecessarily mentioned the allegation of Zina without having been briefed by his client.

13. Mubarak Athar, 3.P. who conducted inquiry, pursuant to the orders of D.I.-G. Police, Multan Range, in compliance with the direction given by Hon'ble Bench, has appeared as P.W.3. The only objection raised by Jamil Hussain Shah, respondent, is about the authorisation of P.W.3, in the light of order passed by the Hon'ble Bench wherein D.I.-G., Multan Range, was directed to personally enquire the matter. It may be appreciated that the said inquiry was conducted in accordance with the direction given by D.I.-G., Multan and afterwards, on the basis of this inquiry he reported to Hon'ble Bench that during the proceedings taken by him the petitioner i.e. Jamil Hussain Shah could not substantiate or prove the allegation levelled by him. Thus the substantial significance of the report was accepted by the Hon'ble Bench who had passed the said order as it was and the Hon'ble Bench did not make any observations about its illegality as not having been conducted personally by the said D.I.-G. This shows that his personal involvement in the said inquiry was not at all required vide the said order dated 28-8-1991. P.W.3 has deposed about the factum of inquiry and statement made by Jamil Hussain Shah, respondent. Although Jamil Hussain Shah has denied to have made statement Exh.PA before P.W.3 but at the same time he has admitted to have made statement before D.I.-G., Multan range that he would not appear before P.W.3 and that the D.I.-G. had directed him to appear before Office Superintendent of the Office of D.I.-G., Multan. He has however not produced that Superintendent to support his version. He has produced one Muhammad Anwar as D. W.1 but instead of supporting the defence plea his statement further lends support to the case of appellant-complainant. He has not only reiterated allegation about the visit of Sardar Saeed Gul, S.P., Vehari to the house of Almas, brother of the appellant, as disliked by Syed Jamil Hussain Shah, which had resulted in convening of Punchayat and lodging of a protest with Almas against the said visit of S.P., Vehari in his house, but has also confirmed that a writ petition was filed by Syed Jamil Hussain Shah. He has also confirmed that he had also appeared before Superintendent of the Office of D.I.-G. who had instructed him to appear before Mubarak Athar, S.P. Crime, Multan Range and at that time he was accompanied by Syed Jamil Hussain Shah, accused. Although, he has added that the said S.P. had got the signature of Syed Jamil Hussain Shah on a paper, this has never been mentioned by Syed Jamil Hussain Shah in his statement under section 342, Cr.P.C. Also no specific suggestion in this respect has been made to the P.Ws. in the cross-examination. D.W.1 also did not appear before the Hon'ble Bench to complain about the taking of the signature on a blank paper by the said Superintendent. Strangely, he has also admitted that Syed Jamil Hussain Shah did not sign in his presence on the paper before the Superintendent. We are, therefore, unable to subscribe to the view taken by the respondent Jamil Hussain Shah that, without making any statement, the said S.P. could be that much inimical to him to attribute to him a fictitious statement well knowing that the said report and statements were ultimately to be produced before the Hon'ble Bench. The Order Exh. PF finally passed by the Hon'ble Bench on 7-9-1991 refers to the said report of Jamil Hussain Shah who was also present with his counsel. It is nowhere stated therein that he had raised any objection either in respect of illegality of the said report or iii respect of the nature of the statement as having been falsely attributed to him. Thus it could be easily ascertained that the plea of denial taken by him is altogether an afterthought and is not believable.

14. It was vehemently contended before us that name of the appellant was not mentioned in the writ petition and reference has been made only to a sister of Almas who has five other sisters also in addition to the appellant. We are however not at all impressed by this contention as the reference was so specific that it not only hurt the feelings of the appellant but also land d her in trouble when she was dismissed from her service as a teacher, as depose by her and not rebutted by the respondent. Moreover the statement made by Syed Jamil Hussain Shah Exh. PA contains not only an imputation of Zina but also mentions her name as well. The relevant portion is reproduced below:- It is well evident from the above that respondent No.1 has made the allegation of Zina in respect of the appellant in unambiguous words but he has not been able to prove the same by the requisite evidence which fact brings the same within the mischief of section 3 of the said Ordinance. We have no doubt that the contents of writ petition Exh.PB coupled with those of the affidavit submitted therewith by Syed Jamil Hussain Shah, as duly proved by his counsel Mr.Khadim Nadeem Malik P.W.1, read with orders of the Hon'ble Bench and also fully corroborated by depositions of P.W.3 alongwith statement Exh. PA made by him fully established the fact that Jamil Hussain Shah, respondent has committed the Offence of ' Qazf' as defined in the said Ordinance, reproduced hereinabove.

15. Perusal of the record however reveals that proof of Qazf liable to Hadd as required under section 6 of the said Ordinance is not available as neither the respondent Syed Jamil Hussain Shah has made a confession of commission of the Offence of Qazf nor he has committed Qazf in the presence of the Court. Although two Muslim adult male witnesses other than the victim of the Qazf 'lave made deposition on oath but there is no finding of the trial Court about its satisfaction regarding requirement of Tazkiya-tusk-Shahood. There is not even a reference made to the fact whether any attempt for ascertaining the said requirement was made vide open or secret mode of inquiries. In this view of the matter we only find it a case of 'Qazf' liable to Ta'zir.

16. Consequently, for the reasons stated above, while dismissing this appeal to the extent of Sheikh Mumtaz Ali, respondent and maintaining impugned order of the trial Court about his acquittal, we allow this appeal to the extent of Syed Jamil Hussain Shah, respondent, set aside the order of his acquittal recorded by the learned Additional Sessions Judge, Multan vide his judgment dated 27-2-1994 and convict him under section 11 of the said Ordinance and sentence him to one year R.I., whipping numbering thirty stripes and a fine of Rs.50,000 or in default of payment of fine further six months' R.I. Syed Jamil Hussain Shah, respondent may be taken into custody to undergo these sentences. N.H.Q./1043/F ?????????? Appeal allowed.