P L D 1984 Federal Shariat Court 69 (PLP)

MUHAMMAD SIDDIQ, J.--The present petition for special leave to appeal arises out of the following facts and circumstances :-

1. It is alleged that Mian Abdul Qadus, petitioner abducted Mst. Aisba Bibi, wife of Ghulam Rasool, Blacksmith, and case under section 366/504, P. P. C. was registered against him. However, petitioner was found innocent during the investigation and the case was cancelled against him. Said Mst. Aisba Bibi filed a suit for dissolution of marriage against her husband Ghulam Rasool which was decreed ex parte in bar favour on 1-7-1976. Her husband on 12-1-1977 filed an application for setting aside the said ex parte decree which was reiected on 30-7-1979. On 13-1-1983 the respondents Sahib Ali and others submitted an application to the Deputy Commissioner, Kboshab, making certain allegations against Mian Abdul Qadus, petitioner. According to the counsel during the enquiry the petitioner was exonerated by the Deputy Commissioner and consequently no action was taken against him. The petitioner then moved a private complaint before the Sessions Judge Khosbab on 14-4-1983 under section 3/7 of the Offence of Qazf (Enforcement of Hadd) Ordi nance, 1979 (hereinafter referred to as the Ordinance), against Sahib Ali and others (respondents). The learned Sessions Judge sent the said complaint to the Senior Civil Judge/Magistrate Section 30 Khosbab for enquiry under section 202, Cr. P. C. The learned Senior Civil Judge/ Magistrate Section 30 on 4-5-1983 submitted the report with a finding that prima facie the accused persons had levelled false charge of zina against the complainant and all the accused persons were liable to be punished under section 11 of the Ordinance. After the said report the case was entrusted to the Additional Sessions Judge, Khoshab for disposal. The learned Additional Sessions Judge vide impugned Order dated 2-7-1983 dismissed the complaint in limine by holding that neither a prima facie case of Qazf was made out against the respondents nor the trial would be likely to end in a conviction of the respondents.

2. Hence this petition.

3. We have heard at length Mehar Ghulam Ali Mubashar, the learned counsel for the petitioner. According to him the following paragraph 3 of the application submitted by the respondents to the Deputy Commissioner Khosbab clearly amounts to ; Ilelgation of Zina against the petitioner :-- There are two parts of the above paragraphs-the earlier part talks about the abduction of a woman, wife of a poor mistri and the later part says that petitioner was keeping that woman far away from his native village in Shahpur under his. Section 3 of the Ordinance`s deals with an imputation of Zina only. This section is also reproduced below: - "Whoever by word 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 hav ing reason to believe that such imputation will harm the reputation, or hurt the feelings, of such persons, is said, except in the cases here-inafter expected, to commit qazf .." It is conceded by the learned counsel that the earlier part relating to abduction would not be covered by this . section. It is however vehe mently contended by him that intention of the latter part of the above paragraph 3 is absolutely clear and would amount to allegation of Zina especially in the background of enmity between the two parties. According to him the words clearly show that according to the opposite-party the petitioner was committing Zina with the said abductee. As mentioned above the allegation of the respondents against the petitioner was that first he abducted Mst. Aisha Bibi wife of Ghulam Rasool, blacksmith and then after she obtained decree for dissolution of marriage against her said husband Ghulam Rasool, she married the present petitioner and started living with him as his wife. The word was generally speaking connote wife and not a keep. There can thus be two interpretations of the last part of the said paragraph 3 one that Mst. Aisha Bibi was kept by the petitioner in Shahpur as his wife and the other that she was keptas a keep during the earlier period before her marriage with the peti tioner when two interpretations are possible then according to the well settled principle of interpretation one favourable to the accused should be preferred. It is not denied even by the learned counsel that the allegation of 'Zina' as such has not been made in the said paragraph an before inferring 'zina' there should be positive evidence to establish the same which is lacking in this case. Even otherwise the use of the word is more favourable to the accused than to the complainant. Said Mst. Aisha Bibi could not be termed as wife of the petitioner in his before her Nikah was actually performed with him although he may be committing sexual intercourse with her even before his marring with her. There is no mention of any Zina having been committed by the petitioner with her before his marriage with her.

4. There is another infirmity in the case of the petitioner. It is well-settled principle of Islamic Jurisprudence that every person is presumed to be innocent unless proved to be guilty. In the instant case there is double presumption of innocence in favour of the accused persons as they also been found innocent by the trial Court.

5. In the circumstances of the case we find no substance in this peti tion and the same is hereby dismissed in limine. M. A. K. Petition dismissed.