2002 P Cr (PLP)

This revision petition by Syed Haider is directed against the appellate judgment of the learned Additional Sessions Judge‑IV, Hyderabad, dated 24‑2‑2000 whereby the conviction of the petitioner under section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the said Ordinance) sentence of one year, 10 stripes and fine of Rs.25,000 in default thereof to further suffer 3 months' R.I. awarded by the learned IInd Extra‑Joint Civil Judge and First Class Magistrate in a direct Complaint No.93 of 1998, has been maintained.

2. It may briefly be stated that Mst. Shabana Naz daughter of Syed Muhammad Razi, was previously married to the petitioner and from the said wedlock two daughters, namely, Hira Fatima and Iqra Zuhra, were born. However, spouses could not carry out a happy life, therefore, their marriage ended to divorce. Respondent started living with her two daughters in the house of her parents. The parents of the respondent demanded maintenance allowance from the petitioner whereupon the petitioner filed a guardianship application in the Court of Senior Civil Judge, Hyderabad in which the applicant's counsel among other grounds for the applicant/respondent No. l entitlement of the minors took up the plea that "respondent (Mst. Shabana Naz) was living on the earning of her paramour and is a woman of questionable character". The application was supported by an affidavit.

3. Respondent No. l filed a complaint against the petitioner before the learned trial Court under sections 500 and 509, Pakistan Penal Code read with section 7 of the Ordinance. The learned trial Court after examining the complaint under section 200, Criminal Procedure Code and P.Ws. Najmul Hassan and Syed Muhammad Razi under section 200, Criminal Procedure Code issued bailable warrant against the petitioner herein. The accused was tried and ultimately convicted and sentenced as stated above.

4. I have heard learned counsel for the parties and perused the record.

5. It was contended by the learned counsel for the petitioner that the petitioner is innocent and his conviction is untenable and liable to be set aside. That the judgment of the learned trial Court is not sustainable on the evidence on record. The only allegation against the petitioner was that he had used the word "paramour" in respect of the complainant/ respondent in Guardian and Ward Application. This phrase, according to the learned counsel for the petitioner, was neither explained nor verified by him. It was further contended that the petitioner is an uneducated person and does not know English language, therefore, conviction based on the use of such word in the application would not justify the action taken against him. It was further pointed out that the guardianship application was not contested by respondent No.1 and she willingly handed over the custody of the minors to the petitioner as a gusture of compromise but later on she filed a private complaint for reasons not known to the petitioner. That the so‑called sworn affidavit does not carry the word "paramour" which is written in routine by the counsel who drafted the application. It was further contended that the petitioner was never confronted in Court with the said application and the affidavit but was satisfied by placing on file a certificate of the application written in English by the counsel. Neither the learned counsel for the petitioner who had drafted the application nor the reader who verified the affidavit was examined in evidence in the case. It was further submitted that the case does not fall within the purview of Qazf. It was lastly contended that the extra joint Civil Judge (Magistrate 1st Class) had no jurisdiction to try the accused.

6. Admittedly the complaint is based on the contents of the application made by the appellant in Guardianship Court. The application was drafted by a learned counsel representing the appellant in those proceedings. The phrase of which the complainant felt aggrieved was attributed to him and used against him without confronting him with it at any stage of the proceedings. According to the petitioner the matter before Guardianship Judge ended in compromise and in terms thereof the custody of minors was given to him which fact has not been categorically denied by the respondent. It was, therefore, required that the complainant/respondent should have examined the person who drafted the application and further to have led direct evidence of the word used by the petitioner and to prove that such word or phrase did amount to sustain the charge of Qazf. No doubt, the word "paramour" is not used in good sense but it by itself would not amount to sustain the charge of Qazf and entail conviction under section 11 of the Qazf Ordinance. Qazf has been defined in section 3 of the Ordinance which is 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." A question whether certain accusation amounts to Qazf has been dealt with in Mian Abdul Qadus v. Sahib Ali and others PLD 1984 FSC 69 wherein the allegation against the accused was that:‑‑ It was held that the allegation of Zina as such has not been made in the said paragraph and before inferring Zina there should be positive evidence to establish the same. Similarly in the case of 'Muhammad Shabbir v. The State and another PLD 1991 FSC‑71 the statement made by the accused that he had "Ishq‑e‑Haqeeqi" with a married woman came for consideration whether it amounts to the charge of Zina punishable under section 11 of the said Ordinance. It was held that the word used did not amount to the commission of Zina and, therefore, not punishable under section 11 of the said Ordinance. As such the word "paramour" used in the guardianship application on facts and circumstances of the case was not proved beyond reasonable ground having been used by the petitioner. Moreso in view of the judgment cited by the learned counsel the word used did not amount to Qazf punishable under section 11 of the said Ordinance. 7 For the reasons stated above the revision petition is allowed. The judgments of the Courts below are set aside and the petitioner/accused is acquitted of the charge. He is on bail. His bail bonds stand discharged. N.H.Q./64/FSC?????????? Revision petition accepted.