2001 PLP 1498 (YLR)

A writ has been sought to be issued to quash and nullify the order, dated 27-3-2001 passed by Sh. Abdul Rashid, learned Sessions Judge, Sargodha as according to learned counsel, the learned Sessions Judge was not seized of any dissolution matter nor he was as such a proper forum to pass the impugned order.

2. The brief facts, relevant for disposal of this writ petition, are that Ghulam Abbas petitioner was husband of Mst. Ghulam Zuhra. She was accused of an offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII, 1979, vide case F.I.R No.148, dated 13-6-2000 registered with Police Station Cantt., Sargodha. She was admitted to bail on 9-1-2001 where against an application seeking cancellation of the bail was moved by the petitioner. The main allegation against Mst. Ghulam Zuhra was that she committed Zina within the sight of two eye-witnesses and that although in earlier two investigations, Mst. Ghulam Zuhra had been declared innocent yet in the subsequent investigation by A.S.P., she was found to be guilty. According to complainant, she had committed Zina with Abdul Ghaffar respondent No.3. The learned Sessions Judge when seized of this matter proceeded to adjudicate the issue according to the provisions 'of section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance NONIII of 1979. Section 14 of the Ordinance lays down as under: "

14. Lian.

(1) When a husband accuses before a Court his wife who is Muhsan within the meaning of section 'J, 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 had 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 say by Allah the Almighty that my husband is surely 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 subsection (1) has been completed, the Court shall pass 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. (3) Where the husband or the wife refuses to go through the procedure specified in subsection (1), he or, as the- case may be, she shall be imprisoned until

(a) in the case of the husband, he has agreed to go through the aforesaid procedure; or (b) in the case wife, she has either agreed to go through the aforesaid procedure or accept 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 imposition of Hudood . for the Offence of Zina Ordinance, 1979." The learned Sessions Judge after adopting the procedure and administering the oath as prescribed, held that the process of Lian has been completed, therefore, he ordered the dissolution of marriage in- between Ghulam Abbas complainant and Mst. Ghulam Zuhra accused. Further observed that this judgment will be treated as a decree of dissolution of marriage in between the spouses in view of provisions of section 14 of the Qazf Ordinance. Further observed that no proceedings under section 10(2) of Ordinance No VII of 1979 called for and ordered the release of the respondent No.3 Abdul Ghaffar from Jail.

3. The main ground urged against the order that there was no suit for dissolution of marriage pending before the learned Sessions Judge and only proceedings pending were the cancellation of bail already allowed by him to the accused-persons who were Mst. Ghulam Zuhra and Abdul Ghaffar. It has, therefore, been vigorously argued that the procedure adopted and jurisdiction assumed to award the decree of dissolution of marriage is without any lawful authority and as such nullity in the eye of law. According to him, the learned Sessions Judge was not holding trial of any proceedings of dissolution of marriage.

4. In order to appreciate the contention of the petitioner, reference to section 14 of the Qazf Ordinance whereby the Lian has been defined and subsequent procedure has been laid down has been made. The section starts with the phrase that "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". The word "Court" has neither been qualified nor it has been specified that the Court would mean the Court where some matter regarding dissolution of marriage is pending. The only factor to assume jurisdiction is that "when a husband accuses before a Court", the procedure prescribed in the subsequent clauses (a) and (b) of subsection (1) of section 14 of the Qazf Ordinance shall be followed. Meaning thereby there are two requirements that the matter should be before a Court and the husband accuses his wife of Zina. Both the ingredients i.e. the pendency before a Court and accusation of Zina stand fulfilled. The perusal of the whole section when read with reference to the scheme of the Ordinance, the intention of the Legislature appears to be that in the event of accusation of Zina by husband against his wife before the Court when seized of this accusation and the "accusation" requires adjudication then the procedure prescribed under section 14 Of the Qazf Ordinance shall be followed. This is a mandatory provision. In the present case, there was direct accusation by the petitioner who was husband of Mst. Ghulam Zuhra that she committed Zina with respondent No.3 Abdul Ghaffar. The Court as such was seized of the fact in issue and, therefore, in order to resolve the same, the procedure as prescribed under section 14 of the Qazf Ordinance was followed.

5. Section 14 of the Qazf Ordinance does not provide that the procedure prescribed thereunder would be followed only in a case wherein dissolution of marriage has been sought for. Whenever an accusation is made by husband against his wife and the controversy or issue is the subject-matter of a decision by the Court, section 14 has to be applied. The learned counsel in support of his contention has cited the rule laid down by the Hon'ble Federal Shariat Court in the case of Mst. Nek Bakhat v. The State (PLD 1996 Federal Shariat Court 174). The facts and the observations made by their lordships have been gone into with the help of the learned counsel but find that the same do not support the petitioner's contention which is mainly with regard to assumption of the jurisdiction by the learned Sessions Judge. The learned counsel on behalf of the respondents to the contrary has cited the case of Maqbool Ahmed v. Shaikh Muhammad Anwar and others (1999 SCMR 935) whereby their lordships held that precepts regarding the procedure of "Lian" and its effects based on the Injunctions of the Holy Qur'an and Sunnah. It was subsequently held that if both of them bear the prescribed oath of Lian, the Court shall dissolve the marriage between them and all proceedings regarding allegation of Zina shall come to an end. Another judgment rendered by the Hon'ble Federal Court in the case of Afadat v. State (PLD 1982 FSC 52) where it was held by following the majority decision that in case an accusation made by the husband against his wife it is mandatory for the Court to follow the procedure under section 14 of the Qazf Ordinance. The principle and the purpose as flow from the Ordinance, there appears to be no ambiguity that this Ordinance which has been held to be in consonance -.with the Injunctions ' of Islam contemplates to discourage and avert the tendency on the part of the husbands to make false accusation of Zina and in case husband .comes forward with such-like accusation after the wife makes oath. In the form specified in clause (b) of section 14(1) of the Qazf Ordinance then the Court shall act upon the same and will exonerate her of the accusation. As to which of the spouse case forward with truth remains with Allah Almighty as both of them made statements after accepting that in case they make false statements wrath of Allah Almighty may fall upon them. The learned Sessions Judge, therefore, has not acted either illegally or inequitably.

6. In view of the above observations, it is imperative for this Court that no writ should be issued if the impugned order appears to be just and equitable. The law also favours the settlement of controversies as soon as possible by the Courts, of course, keeping them within the bounds of law. With this background, when the word "Court" is interpreted as to which of the Court can adopt the procedure of Lian then following the literal meaning of the phrase "before the Court" should not be assigned the meaning that the Court where a matter with regard to dissolution of marriage is pending or the Court where the prosecution of cause under Zina Ordinance is subjudice. "The Court" which seized of the matter with regard to determine the accusation regarding Zina against his wife, this procedure can validly be adopted and followed. The same would not only be just and proper but will also be in conformity with the principles of justice and equity.

7. In view of the above discussion, this writ petition fails and the same is accordingly dismissed. However, there will be no order as to costs. H.B.T./6-102/L Petition dismissed.