P L D 1996 Lahore 50 (PLP)

The instant Civil Revision has been filed against the judgment and decree, dated 6‑5‑1991 passed by the learned Civil Judge, Mandi Baha‑ud‑Din and that of the learned District Judge, Mandi Baha‑ud‑Din, dated 8‑&1994 affirming the judgment and decree passed by the learned trial Court whereby the suit of the petitioner‑plaintiff was dismissed.

2. The brief facts of the instant case are that the respondent‑defendant lodged F.I.R. No. 276, dated 8‑3‑1987 under section 11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Phalia against the present petitioner and her son. The petitioner was arrested in this case by the police, was sent to judicial lock‑up and remained in jail for 1‑1/2 months, stood trial and was acquitted on 16‑10‑1988.

3. According to the petitioner she filed a suit for defamation to the effect that this was a malicious prosecution and was based upon mala fides of the respondent and that this was a false case to damage her reputation in the Society. The petitioner filed a suit for the recovery of damages of Rs.25,000 for mental torture and other expenses. On the pleadings of the parties the learned trial Court framed the following issues:‑ (1) Whether this Court lacks jurisdiction to try the suit? (2) Whether the defendant prosecuted the plaintiff malaciously and as such plaintiff is entitled to the damages claimed for? (3) Whether the suit is mala fide and liable to dismissal with compensatory costs under section 35‑A, C.P.C.? (4) Relief. According to the contention of the petitioner she produced oral as well as documentary evidence and had also appeared as P.W.1 and produced P.W.2 and P.W

3. She also placed on record an attested copy of the judgment passed by the learned Additional Sessions Judge, Gujrat Camp at Phalia as Exh.P/1, acquitting her from the charge in F.I.R. No. 276, dated 8‑3‑1987 registered under section 11/16 of Offence of Zine (Enforcement of Hudood) Ordinance, 1979 at P.S. Phalia. The P.Ws. supported the case of the petitioner. The defendant also produced his evidence. The learned trial Court dismissed the suit vide judgment and decree, dated 6‑5‑1991. The petitioner filed an appeal against the said judgment before the learned District Judge, Mandi Baha‑ud-Din. This appeal was also dismissed on 8‑6‑1994 and through the instant Civil Revision she. has assailed both the concurrent findings of the Courts below on the ground ‑that the judgments of the Courts below are not according to the proposition of law and are based on non‑appraisal of the evidence produced by the parties and that it also suffers due to non‑reading and misreading of evidence. According to the learned counsel for the petitioner the statements of the D.Ws. were contradictory and the Court could not place reliance on the testimony of such witnesses, therefore, they have committed an irregularity and illegality in placing reliance upon the statements of the D.Ws. and that the learned Appellate Court has given a finding on the basis of the judgment of the learned trial Court and has not scrutinised any legal infirmity. 4. 1 have heard learned counsel for the parties and have also perused the record. The petitioner filed a suit for recovery of Rs.25,000 as damages for her malicious prosecution under Ordinance VII of 1979. The suit was contested by the respondent/defendant. In No.1 he wrote that the petitioner/plaintiff was not at all a noble lady nor she possessed good reputation and the F.I.R. against the present petitioner was not based on any mala fide. This F.I.R. was correct as petitioner and her son were instrumental in the abduction of his wife for the purposes of adultery, to Sargodha. The petitioner appeared as P.W.1 and she stated that the F.I.R. was registered by the respondent‑defendant against her; she remained in judicial lock‑up for one month, the police insulted her, she faced the regular trial and she and her son were acquitted, therefore, her reputation and dignity was injured in the Society and she was subjected to mental agony, also spent expenses and there is no compensation to the injury caused to the petitioner's reputation, she in token demanded Rs.25,000 as damages. In the cross‑examination she admitted that the F.I.R. was registered against three persons and all the three were acquitted. She also admitted that her son has also filed a suit for damages for the recovery of Rs.25,000 and both the suits were separate.

5. P.W.2 is Ghulam Rasool. . He also supported petitioner's case. He stated that due to malicious prosecution the petitioner suffered mental agony and spent expenses. He also stated that although there is no compensation for the injury of reputation but she is entitled in token to the damages for Rs.25,

000. In cross‑examination he admitted that the petitioner belongs to his Brathari and an oath was administered by the petitioner that she and her son are innocent but nevertheless police arrested and challaned the petitioner and her son and sent them to face trial. He admitted that the petitioner is not a Parda‑observing lady and he used to visit the petitioner while she was confined at the police station. P.W3 Muhammad Ali also supported the petitioner. In cross examination he admitted that the petitioner and her son gave oath to the respondent/defendant that they are innocent but still they were challaned in the aforesaid abduction case and he has been visiting the petitioner while she was in the police custody. He also stated that the petitioner also incurred expenses. The defendant appeared as D.W.1 and stated that the petitioner is not enjoying good reputation and there was no enmity with the petitioner before the registration of the F.I.R., his wife was abducted by one of the co‑accused but since all the witnesses were hostile, therefore, all the accused were acquitted and his wife is not living with him any more and she has filed a suit for dissolution of marriage. He admitted in the cross‑examination that no case stood registered against present petitioner except the present one. He also admitted that the petitioner remained for 21/22 days in the police lock‑up and she also remained in jail at Gujrat for 1 - 2 months and the trial continued till one year. He did not know how many P.Ws. were examined. He also admitted that the mother and the son both were challaned in the case. However, he denied that the case was false. D.W.2 Bashir Ahmad has supported the respondent/defendant. He stated that the petitioner was rightly challaned in the F.I.R. as the abductee was also recovered who is living with one Zulfiqar against whom the case was registered and he is in jail. In cross‑examination he admitted that against the present petitioner and his son no other criminal case stood registered. The defendant also produced a copy of the private complaint (Exh.D/1) copy of the judgment passed by the learned Family Judge, Sargodha (Exh.D/2), a copy of the decree passed by the learned Judge Family Court (Exh.D/3) and a copy of the report on the application under section 107/151 (Exh.D/4). The learned trial Court vide judgment and decree, dated 6‑5‑1991 dismissed the suit of the petitioner/plaintiff with costs. The issue No.1 about the jurisdiction was decided against the respondent/defendant, issue No.2 was decided against the petitioner/plaintiff on the ground that the ingredients for malicious prosecution are that in the first place, there must be a prosecution, it must be an unsuccessful prosecution and there must be in addition to the absence of reasonable and probable cause, malice too. The learned trial Court also held that there was no improper or wrongful motive against the petitioner/plaintiff as he accepted the oath of the petitioner/plaintiff, and therefore, he had no ultra in motive against the petitioner. ‑Therefore, he decided issues Nos.2, 3 and 4 against the petitioner‑plaintiff and dismissed the suit with costs.

6. The Appellate Court while deciding the appeal held that the petitioner was involved for abduction and commission of Zina with the abductee and the learned trial Court after recording the evidence found that the same was not sufficient for conviction of the petitioner and she was acquitted taking the benefit of doubt. According to the lower Appellate Court, it is always the accused who enjoys benefit of doubt on account of infirmities of the prosecution story. If it is not proved beyond shadow of doubt and this in no manner implies that the offence alleged was not committed by the accused. According to the Appellate Court the offence might have been committed and the same was not proved beyond any reasonable shadow of doubt, therefore, conviction could not be awarded to the accused and since the petitioner was nominated in the F.I.R. being an instrumental to the abduction of Mst. Sakina Bibi who was abducted for the commission of Zina due to technicalities the role of the present petitioner/plaintiff was not established during the trial, therefore, it cannot be said that the petitioner/plaintiff was involved in the case on the basis of mala fides as the aforesaid three ingredients for establishment of the offence are not present in the petitioner's case. 7. 1 have heard learned counsel for the parties. Learned counsel appearing on behalf of the respondent has fully supported the judgment to be in accordance with law and the petitioner not able to prove her case before the subordinate Courts, cannot agitate the same in the civil revision as there is a concurrent finding of fact of the Courts below. 8. 1 am afraid I am not convinced with the arguments advanced by the learned counsel for the respondent as the case which was registered against the present petitioner and her son was under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No. 276/87 P.S. Phalia District Gujrat on 22‑3‑1987 wherein it was alleged by the complainant that the petitioner Husain Bibi was instrumental in the abduction of the wife of the complainant for the purpose of commission of Zina with her son Muhammad Ashraf. She was arrested in this case and remained in jail for 1‑1/2 months, stood trial and was acquitted on 16‑10‑1988.

9. Actions under the Enforcement of Hudood Ordinance are two‑fold. The petitioner can sue under the ordinary law of tort for libel and also under the dictates of the Holy Qur'an as envisaged in Surrah Al‑Noor for Qazf. Even otherwise no right is self‑executory. These are always enforcible by the Courts through judicial process and its ineffectiveness presupposes the ineffectiveness of the procedure by which a judicial 'Will' is enforced to protect individual's. right. Even otherwise the natural law casts a duty on a person not to abuse one's right in the exercise of his right. A person is presumed to exercise his right with. the utmost reasonable regards to the interest of others and not to act in a vexatious manner to harm the right of reputation of other person. Defamation is defined as publication of a statement which reflects a person's reputation and tends to lower him/her in the estimation of right thinking members of the Society generally or tend to rise in people a strong hatred, contempt ridicule "tending to shown and avoid". Therefore, even in imputation of a criminal offence punishable with imprisonment the plaintiff can recover damages for malacious prosecution for injury to his reputation. Imputation ' of criminal offence is actionable per se in the probability of social C ostracism of the plaintiff. Even the imputation of unchastity or adultery of a woman or a girl is governed by Slander of Women Act, 1891 in England.

10. Under the Islamic law the right of reputation L, throughout a sacred right well‑preserved by the dictates of the Holy Qur'an which casts a duty on the other who bring forward a false case of adultery or commission of Zina to bring a direct action of prosecution against the complainant when the allegations have proved false under Qazf Qur'an places a great emphasis upon the reputation of a woman in the Society and besides penal provision also provides the withdrawal of civic rights of a person guilty, of slander. In this behalf Sura "Al‑Noor" 24.1 reads as urder: "Those that defame honourable women and cannot produce four witnesses shall be given eighty lashes. And do not accept their testimony ever after, for they are great transgressors."

11. The Society where an individual lives carries itself legal norms and when someone is alleged for the commission of the heinous offence of Zina. The Islamic law casts a duty on that person to bring forward as strong evidence to prove the commission of offence as strong the allegation is. Since the right of reputation is strongly protected by the God Almighty in the Holy Book and anyone who is bringing forward the allegation of Zina must exercise his right with a reasonable care and caution towards the right of reputation of other person. Since this allegation reflects directly on a person's right of reputation and tends to lower him in the estimation of right thinking members of Society generally or tends to invoke a feeling so strong as hatred, contempt or ridicule ."tending to shun and avoid" him. Therefore, this type of Allegation not only makes a person to suffer an agony of mind but also an irreparable loss to his reputation in the Society and for them again in. Sura "Al‑Noor" the God Almighty says:‑ "When you heard it, why did the faithful, men and women, not think well of their own people, and say: "This is an evident falsehood? Why did they not produce four witnesses? If they could not produce any witnesses, that they were surely lying in the sight of Allah." "24.17. Allah bids you never again to repeat the like, if you are true believers. Allah makes plain to you. His revelations. He is Wise. Knowing. Those who delight in spreading slanders against the faithful shall be sternly punished in this life and in the next. Allah knows, but you do not." Even a person who exercises his right maliciously and vexatiously in spreading the slander to the injury 6f reputation of other, Qur'an says that stern action be taken against him by punishing and taking away his civil rights. 12. 1 have carefully examined the judgments of the lower Courts. In fact they considered the present case at par with other cases when the petitioner s case was entirely different it was a case registered under section 11/16 of the, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioner though being a mother of grown up major son was nominated in the F.I.R. and after being acquitted she claimed:‑ (i) Damages for defamation Rs.12,000.00 (ii) Damages for mental torture Rs.10,000,.00 (iii) Counsel's fee and other expenditure of case Rs.3.000.00 Total: Rs.25,000.00 The Courts below while deciding Issues No.2 and 3 have been considering the present case on the mere premises of unsuccessful prosecution without the presence of some improper and wrongful motive and did not advert to the fact that a case registered under Islamic law is governed by dictates of Holy Qur'an, the heinous offence, the strictest possible evidence after passing through the scrutiny of evidence, and if the complainant fails to bring for‑ward and prove the guilt the burden shifts to the other side to bring forth an action per se for the loss of reputation. I have also gone through the evidence. The petitioner has fully proved her case, she is an old woman and a mother of a grown up children; she had gone through the agony of prison and also the charges of abduction under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 being directly nominated in the F.I.R. and she has a right to bring forward the action per se for the damages and also for Qazf. Therefore, the judgments of the learned ‑trial Court as well as the learned Appellate Court are not based on the true appreciation of evidence.

13. Therefore, in the fight of the above discussion I accept the instant Civil G Revision, set aside the judgment and decree dated 6‑5‑1991 paid by the learned Civil Judge, Mandi Baha‑ud‑Dm and that of the learned District Judge, Mandi Baha‑ud‑Din, dated 8‑&1994 and decree the suit of the petitioner to the extent of Rs. 25,000 as damages recoverable from the respondent. 14. 'No order as to costs. M.BA./H‑165/L Petition accepted.