P L D 2018 Federal Shariat Court 6 (PLP)

DR. FIDA MUHAMMAD KHAN, J.

The appellants/accused Fiaz Ahmed and Allah Nawaz have challenged the judgment dated 31.10.2017 passed by learned Additional Sessions Judge, Jahanian, District Khanewal, whereby they have been convicted under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to whipping numbering eighty stripes for committing Qazf liable to Hadd against complainant/ respondent Rifat Farnaz. The learned trial Court has also forwarded a Criminal Reference No.1/L-2017 for confirmation of punishment of whipping awarded to the appellants. We are disposing of both these matters vide this judgment.

2. The facts, arising out of a private complaint, filed by Rifat Farnaz (PW-1), are to the effect that she was earlier married with accused Fiaz Ahmed on 20.02.1993 and out of that wedlock a baby boy namely Muhammad Ghazanfar Khan was born who has been residing with her. Accused Fiaz Ahmed divorced her on 22.08.2002 and disconnected his relations with his son Muhammad Ghazanfar Khan. He executed an agreement wherein, inter alia, he stated that the minor Ghazanfar Khan will remain with her and she will bear his expenses while Fiaz Ahmed accused/appellant will be entitled to meet the said minor. Later on, however, no contact remained between Muhammad Ghazanfar Khan and accused Fiaz Ahmed. Subsequently, Ch. Abdul Ghafoor Nazim/Chairman arbitration council 97 Gulberg, Lahore received the notice of divorce as well as the divorce deed executed by accused Fiaz Ahmed in favour of complainant/respondent. The Chairman arbitration council summoned the accused/appellant Fiaz Ahmed but he did not appear and ultimately on 28.11.2002 the aforementioned divorce got effected between the parties and a divorce certificate was issued accordingly. Thereafter, the complainant/respondent solemnized Nikah with Malik Muhammad Qadeer on 09.12.2002 and out of this wedlock two daughters were born. On 18.01.2013, the appellant/accused Fiaz Ahmed and others attached upon her and she got registered a criminal case FIR No. 385/13 at Police Station Jahanian. On 07.9.2013, the appellant/accused filed an application for registration of case against her and her husband Muhammad Qadeer and charged them both for committing Zina. However, later on it was dismissed as withdrawn.

3. The witnesses namely Allah Nawaz, Sajid, Imdad and Zafar Iqbal had the knowledge of divorce of complainant/respondent from Fiaz Ahmed and her solemnization of second marriage with Muhammad Qadeer. On 22.09.2013 at 06:00 PM when she was about to sit in her car along with her daughters in presence of witnesses Muhammad Qadeer, Ghazanfar Muhammad Khan and Asim, the accused Allah Nawaz, Fiaz Ahmed, Imdad, Sajid and Zafar Iqbal came and levelled allegation of Zina against her and her husband and stated that both of her daughters Dania and Sania were the result of Zina. On 24.10.2013, the respondent, Mst. Rifat Farnaz submitted a private complaint against Fiaz Ahmed, Allah Nawaz, Sajid, Imdad and Zafar Iqbal under the said Ordinance, before the Sessions Judge, Khanewal.

4. After the recording of cursory evidence, the accused Fiaz Ahmed, Allah Nawaz and Sajid were summoned to face trial under the above said allegation. After delivery of copies, as required under section 265-C of the Code of Criminal Procedure, the accused Fiaz Ahmed, Allah Nawaz and Sajid were charge-sheeted under section 7 of the said Ordinance to which they pleaded not guilty and claimed trial.

5. At the trial, the complainant herself appeared as PW-1 and also produced Muhammad Qadeer, PW-2, Muhammad Asim, PW-3 and Mr. Haroon-ur-Rasheed Nizami, Advocate PW-4 to prove her case.

6. The learned trial Court, on conclusion of the trial, convicted and sentenced the accused/appellants, as mentioned in the opening para of this judgment. Hence the present appeal.

7. We have heard learned counsel for the appellants/accused as well as learned Additional Prosecution General, Punjab for State and thoroughly perused the record with their assistance.

8. At the outset, learned counsel for the appellants/accused submitted that the complainant/respondent Mst. Rifaq Farnaz has pardoned the appellants/accused in the name of Allah Almighty and has submitted an application regarding her compromise with the appellant/accused.

9. The complainant, present in Court along with her son Ghazanfar Muhammad Khan, was identified by her son. She submitted Cr. Misc. Application No. 02/I of 2018 for recording her statement in respect of her compromise. The same was accepted and she was allowed to do so. Accordingly Mst. Rifat Farnaz made deposition to the effect that a compromise has been effected with the respondents namely Fiaz Ahmed and Allah Nawaz and as such she does not press the present complaint. She has no objection, if the sentence of the respondents is not executed and they are acquitted of the charge under section 7 of the said Ordinance. The learned Additional Prosecutor General, Punjab stated that he had no objection on the compromise effected between the parties.

10. Before discussing the instant case, it may be mentioned that the punishment of Hadd prescribed for commission of Qazf is based on the following Verse of the Holy Quran. "Those who accuse chaste, honourable women (of unchastity) but do not produce four witnesses, flog them with eighty lashes, and do not admit their testimony ever after. They are indeed transgressors." It is pertinent to mention that, according to the injunctions of Islam, the dignity and self respect of every man is inviolable in all circumstances (17:70 ). Hence anyone who makes an imputation of Zina directly or indirectly, in alternative words, against any person but fails to produce in support thereof, four witnesses before the Court, becomes liable to the punishment of Qazf. The intention of this Command is to impose a complete ban on allegations about the people's unlawful connections and illicit relationships, because it gives birth to innumerable evils. Imperceptibly it creates and spreads an immoral atmosphere. One person tells someone else about another person's affairs and, whether true or false, the others keep on passing them over to still others with additions and exaggerations. This publicity invariably spreads evil passions on a large scale and, unless checked and curbed immediately, it creates a havoc in society and the person against whom such allegations are made feels absolutely helpless to defend himself and thus along with his whole family he/she suffers a lot of humiliation. Therefore, Islamic Shariat intends to nip this evil in the bud. On one hand it enjoins that if a person is found involved in zina and his guilt is fully established by evidence, he/she has to be awarded a severe exemplary punishment and, in the alternative, it has laid down that if a person accuses another of zina but is unable to prove his allegation before the Court by producing the required evidence, he must be awarded 80 strips so that not only he stops to utter such a baseless slander in futue but also set a deterrent example for others. It follows that even if the accuser is an eye-witness of such an immoral act, but does not have the requisite proof, he is asked to keep his mouth shut and instead of causing it to spread, let the filth remain confined to the place where it is observed. However, if the accuser has the requisite number of witnesses, he should, instead, abstain from publicizing the matter in society but should bring it to the notice of concerned authorities and get the criminals duly punished by the court of law.

11. Following paras contain further details of the said law in serial order:-- (a) The context in which the words ( ) (those who charge chaste women with false accusation) clearly shows that it does not imply any other accusation except the specific accusation of zina against the chastity of women. The requirement to produce four witnesses in support of such accusation shows that it relates only to the allegation of zina. Such accusation of zina has been termed Qazf and, therefore, the ingredients of this injunction are not extended to cover cases of others accusations like that of theft, drinking, cheating etc. In those cases, the legislature has the power to determine proper punishments, as deemed suitable. (b) We may add that although the above verse only mentions al-muhsanat (the women), the jurists unanimously hold that the said law is not confined to the accusation in respect of women only, but applies to such accusation in respect of men also. Likewise, though the masculine gender has been used for the accusers, the law extends to female accusers as well. Male and female both have similar protection and the Islamic Law does not make any difference between the genders in this respect. (c) Muslim jurists have classified various criminal offences on the basis of right violated and categorized them as follow: i) Cases pertaining to the rights of Allah. ii) Cases pertaining to the rights of people. iii Cases where both the above rights are combined. The third category has been further divided into two types and, after elaborate discussion, the jurists have held that in case of violation of the rights of Allah, the punishment prescribed is termed as "Hadd" or "Qisas", while all the other punishments pertaining to the violation of the rights of individuals/public at large, are covered under the term "Taazir".

12. As is obvious, the penalty for an offence against the right of Allah cannot be waived off or commuted after due trial and conviction. However, the penalty for an offence against the right of individual only, subject to various conditions, can be commuted. The important point to be made here is that violation of the right of Allah cannot be pardoned. Any sentence other than Hadd can be altered, reduced or waived off. In this connection, Muslim Jurists have thoroughly discussed the sentence of Hadd-e-Qazf. A very prominent Jurist namely Dr Wahbah Zuhaili discussed this issue under the topic ( ) where he writes: "Qazf involves two kinds of rights, right of individual and right of Allah On the basis of the second opinion which is the opinion of Shafiets and Hanbaliets, it is permissible for "Maqzoof' (Complainant), even after the complaint is placed before the Court, to drop the Hadd from him and to forgive him or perform Sulh with him on consideration or without consideration. Demand for Qazf punishment is also inherited because it is the right of individual". " " Another imminent jurist of repute, Sayyed Sabiq after discussing opinion of four schools of thought, also discussed the issue of repentance. He writes: " " Repentance does not give any benefit to the accuser (Qazf) unless he has been forgiven by Maqzoof'. ( ). The renowned universally acknowledged jurist Muhammad Abu Zahrah- states that in case of Qazf, the right of individual is predominant over right of Allah: "In case of Qadhf the opinion regarding of the Right of individual is more obvious. ( ). Another jurist of a very highly acknowledged repute, namely A.Qader Audah Shaheed, has elaborately discussed the said issue in the following words:

13. In view of the above, it is quite clear that according to the overwhelming majority of prominent Muslim jurists, including some Hanafis, the offence of Qazf is a crime where the right of individual is predominant, and pardon may be granted to the accused by the complainant. As is clear from the above, the offence of Qazf liable to Hadd is to be based on the statement of the complainant who has been accused of the commission of offence. Hence, if he/she grants pardon or waives off his or her right, at any stage, the sentence of Qazf is to be warded off. In the instant case, as stated above, the complainant has made a statement before this Court, patched up the matter and granted pardon to the appellant/accused.

14. For the reasons stated above, therefore, we set aside the conviction and sentence of Hadd awarded to both the appellants and acquit them of the charges. Both the appellants/accused are present on bail. Their bail bonds are discharged. The Criminal Reference is answered in negative.

15. These are the reasons of our Short Order dated 15.01.2018. MWA/3/FSC Appeal allowed.