1992 P Cr (PLP)

TANZILUR RAHMAN, C.J.

This is an appeal against the judgment dated 4-2-1992, passed by learned Sessions Judge, Karachi East, in complaint Case No.639 of 1990, acquitting respondent No.2 of the charges under sections 7 and 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (herein after referred to as "the said Ordinance").

2. Brief facts are that the appellant Mst. Rubi Akhtar on 14-8-1986 was married with Captain S.M. Aslam respondent No.2. Two children, namely, Mahwash (daughter) and Moazzam (son) were born out of the said wedlock. The appellant was, however, divorced by the said respondent on 19-12-1987. Respondent No.2 got served the appellant with a legal notice dated 27-12-1987 through his Advocate, Shaikh Ejaz Ahmad, wherein inter alia, certain allegations were made against the character of the appellant. Relevant paragraphs of the said notice (Exh.10) are reproduced as under:-- "Para

2. That according to my client abovenamed you have after about eight years of happy married life changed your attitude towards him and developed unfaithfulness by and by resulting in violent and insubordinate living going out in his absence from the house and enjoy company of strangers and thereby refusing to perform marital obligations and conjugal rights with him. On my client's reprimandation and asking you to be faithful to him you went away on 5-3-1985 and returned on 24-3-1985 that when my client saw you to have enjoyment of life with neighbourers named as Khalid and one Akhtar Baloch and you in writing confessed to have sexual intercourse with them and having repented you asked my client's forgiveness to save you from bad reputation in life which he tolerated for clouding his disrespect asked you to be a good and faithful wife. But since you had not changed your way of life on ugly side you alongwith the said two children left his house and started to live at your parents house and severally visited my client in a month in order to show him and meet with his children and had been obtaining handsome cash amount promising to maintain the children according to his standard and status in life. Para

3. That according-to my client it was peak of marital life for him on 17th December, 1987 when at about 6-00 p.m. he had gone to his Advocate, Mr. Jawed Ahmad Siddiqui to supply some notices/papers and finding his office closed situated on the first floor in Uzma Arcade, Clifton Road, Karachi he was coming out of staircase that you were found entering in English Boot House alongwith and in Jowial Company of one Sindhi Wadera named Adam Jokhio getting down from his Mercedes Car which was also occupied by his Gunman bodyguard. Accordingly my client while seeing all this followed you in the said Boot House and face to face asked you in presence of so many other customers and people gathered over there in result of exchange of hot words and quiry (sic) about your enjoyment of company with the said Wadera, in spite of my client's being legally wedded wife, whereon to save your skin and perspiring face you claimed said Wadera as your legal husband and the gunman and your said illegal husband pushed you in his car and ran away. My client on this incidence rather serious event of life is of the firm opinion that you have adopted a wrong path of life being lusty of lavish and accustomed to adulterous life, could have prosecuted you according to law but finding it would further cause mud-slinging on his life, reputation and respect, he thought it fit to sever connection from you by pronouncing Talak which he did and sent you Talaknama dated 19 - 12-1987 under registered post A.D. Para

4. That in view of the situation and your corrupt life and loose character the present and future of my client's two children named hereinabove if retained by and left with you or in your custody will adversely affect their innocent life, living, conduct and career in life and for that my client wants them to save from your shadow even and asks you to give them in my client's custody who is their natural guardian and will maintain them according to his status in life, standard of living and high educational values in life and family.` It is worth mentioning that the said Advocate appeared in Court and stated that the said notice was not only issued under the instructions of respondent No.2 but he also endorsed it by putting his signature on a copy thereof and never denied the issuance of the said notice under his instructions or repudiated its contents.

3. On 31stMay, 1988, respondent No.2 filed Guardian and Ward Suit No.622 of 1988, in the Vth Court of Senior Civil Judge, Karachi West, for custody of the abovesaid two minors to him. Relevant paragraphs Nos.2, 3, 4 and 5 of the said plaint (Exh.13), wherein the several allegations relating to the character of the 'appellant, of the same nature as those contained in his previous legal notice, are reproduced as under:-- "Para

2. That the applicant has been a Merchant Navy Captain and had been some time in Nigeria and in some other renowned countries where earned a handsome amount of money and thus having good status and resources of income he leaded (sic) a most successful life after marriage and so much so the applicant also afforded a most comfortable life to his life partner, the respondent/opponent which resulted that the respondent/opponent also enjoyed with all the possible happiness of life previously. Para

3. That previously the attitude of the respondent/opponent experienced by the applicant was quite abnormal. Patna

4. That on so many occasions previously the 'respondent used to quarrel with the applicant on some petty matters without any genuine reasons, misbehaved rudely arid however, on several times she used to leave the house of the applicant for weeks together and stayed away at the house of her parents without any lawful reason. . Para

5. That in the previous year the respondent was also availing with the opportunity to enjoy with the full liberty and as such she had been passing her maximum time and days outside of the house without the prior permission from the applicant and whenever it was objected by the applicant she had given a rude reply which resulted that differences of several natures were cropped up and they became stronger day by day and on one day she alongwith her two children as referred above left the house of the applicant on the flimsy ground and started residing at the house of her parents. . Para

6. That the applicant tried his utmost to bring her at his house and sought out the help of the other important personality/personalities to solve this problem but the respondent acting upon the instigation of her father, refused to return at the house of the applicant and thus the parties could not remain under the Allah, the Almighty and the applicant looking her bitter attitude and intolerable activities preferred to divorce the respondent/opponent on 19-12-1987. Para.8. That the respondent was also of her will to get divorce because of her mala tide intentions as she is leading a corrupt life having some loose character and if under such circumstances the said children will be retained by or left with the respondent or the custody of these children were remained with her, naturally the innocent life, career and their future will be ruined."

4. The appellant, being aggrieved of the several allegations, made by the said respondent, against the said character filed criminal complaint No.639/90, under sections 7 and 11 of the said Ordinance before learned Sessions Judge, Karachi East, mentioning therein the following three instances of the commission of offence by the said respondent:-- "(1) He mentioned in his legal notice that the appellant had committed sexual intercourse with Khalid and Akhtar Baloch and others. (2) He had stated in the' plaint of his G & W Case No.622 of 1988, that the appellant was leading an immoral life. (3) He levelled allegations of commission of Zina before her relations." The learned Sessions Judge, registered criminal case against the respondent. A charge was framed under aforesaid sections by the learned Sessions Judge against the said respondent who having not pleaded guilty was tried for the same.

5. The appellant examined herself (Exh.9) in the said Court and also produced two witnesses Dil Murad and Amiruddin (Exhs.7 and 8). The respondent No.2 also examined himself and produced two witnesses in defence (Exhs.30 and 31). The learned Sessions Judge, on the application of the appellant also examined Syed Ejaz Ahmad, Advocate, the author of the legal notice (Exh.10) as Court witness, who produced the original notice bearing the endorsement of the respondent. The learned Sessions Judge, thereafter, heard the arguments of the counsel for the parties and by his judgment, referred to above, acquitted the respondent and dismissed the complaint of the appellant against which the present appeal has been filed with permission of the 'Court.

6. The learned Sessions Judge for deciding the said case framed the following two points:-- "(1) Whether the accused called complainant Mst. Ruby as prostitute and charged her with the allegations that she was leading any immoral life, in presence of witnesses namely Amiruddin and Dil Murad? (2) What offence, if any, has been committed by the accused and giving his finding on point No.1, as not proved acquitted the respondent.

7. We have heard the learned counsel for the parties at some length. It appears that the learned Judge has not at all discussed the relevant portions of the documentary evidence admitted and proved in the evidence. He has simply pointed out certain discrepancies and contradictions of minor nature m the evidence of PWs and those too relate to unimportant, if not irrelevant, portions of their statements.

8. Before examining the evidence that has come on record we would like to refer to the law of Qazf as has been in force in Pakistan since 10thFebruary, 1979. The relevant provisions read as under:-- "

3. Qazf.--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. Explanation 1.--It may amount to Qazf to impute Zina to a deceased person, if the imputation would harm the reputation or hurt the feelings, of that person if living and is hurtful to the feelings of his family or other near relatives. Explanation 2.--An imputation in the form of an alternative or expressed ironically, may amount to Qazf. First Exception (Imputation of truth which public good requires to be made or published).

It is not Qazf to impute Zina to any person if the imputation be true and made or published for the public good. Whether or not it is for the public good, is a question of fact. Second Exception (Accusation preferred in good faith to authorised person).

Save in the cases hereinafter mentioned, it is not Qazf to prefer in good faith an accusation of Zina against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. (a) A complainant makes an accusation of Zina against another person in a Court, but fails to produce four witnesses in support thereof before the Court. (b) According to the finding of the Court, a witness has given false evidence of the Commission of Zina or Zina-bil-jabr, (c) According to the finding of the Court, complainant has made a false . accusation of Zina-bil-jabr:' "

5. Qazf liable to Hadd.-- Whoever, being an adult, intentionally and without ambiguity commits Qazf of Zina liable to Hadd against a particular person who is a Muhsan and capable of performing sexual inter-course is, subject to the provisions of this Ordinance, said to commit qazf liable to Hadd. Explanation 1.

In this section, "Muhsan" means a sane and adult Muslim who either has had no sexual inter-course or has had such inter-course only with his or her lawfully wedded spouse. Explanation 2.

If a person makes in respect of another person the imputation that such other person is an illegitimate child, or refuses to recognise such person to be a legitimate child, he shall be deemed to have committed qazf liable to Hadd in respect of the mother of that person. "

6. Proof of Qazf liable to Hadd.-- Proof of Qazf liable to Hadd shall be in one of the following forms namely:-- (a) the accused makes before Court of competent jurisdiction confession of the commission of the offence; (b) the accused commits Qazf in the presence of the Court; and (c) at least two Muslim adult male witnesses, other than the victim of the Qazf, about whom the Court is satisfied, having regard to the requirements of Tazkiyah-al-shuhood, that they are truthful persons and abstain from major sins (Kabair), give direct evidence of the commission of Qazf: Provided that if the accused-is a non-Muslim, the witnesses may be non-Muslim: ' Provided further that the statement of the complainant or the person authorised by him shall be recorded before the statements of the witnesses are recorded."

7. Punishment of Qazf liable to Hadd.

(1) Whoever commits qazf liable to Hadd shall be punished with whipping numbering eighty stripes. (2) After a person has been convicted for the offence of qazf liable to Hadd, his evidence shall not be admissible in any Court of law. (3) A punishment awarded under subsection (1) shall not be executed until it has been confirmed by the Court to which an appeal from the Court awarded the punishment lies; and, until the punishment of confirmed and executed, the convict shall, subject to the provisions of the Code of Criminal Procedure, 1898, relating to the grant of bail or suspension of sentence, be dealt with in the same manner as if sentenced to simple imprisonment."

9. The law of Qazf has also been dealt with in several textbooks of Fiqh: (i) Muhammad' Iqbal Siddiqui in "The Penal Law of Islam", Lahore 1979 p.87-88., writes:-- "Qadhf, in its primitive sense simply means accusation: By Qadhf, in the language of the law, is understood to levy a charge of adultery against a married man or woman. The person so acting being termed the Qadhf, or slanderer and the man or woman so scandalized the Maqdhuf/Maqdhufa or slandered. The evil caused by calumny is similar to that caused by fornication itself. Accusing a lady of fornication not only damages her reputation but also creates bad blood between the families. It renders parentage doubtful, spoils conjugal relations and ruins the mental peace of scores of other people also for years to come. Therefore, the Holy Qur'an has enjoined severe punishment for this offence." (ii) In a report on "Islamic Criminal Laws (Part-I Hudud) by Justice Dr. Tanzil-ur-Rehman, then Chairman of the Council of Islamic Ideology, Islamabad, he wrote:-- "In fact, Islamic Law takes a very serious view of it. The Holy Qur'an makes two categories of this sort of crime. First relates to the allegation of unchastity brought by the husband against the wife and the second relates to outsiders. (39) For the first case, the Holy Qur'an lays down the procedure generally termed as Li'an which is to be observed in a Court of Law. It is as under:-- "And for those who launch a charge (of unchastity) against their spouses, and have (in support no evidence but their own, their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth; and the fifth (oath) should be that they solemnly invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah, that (her husband) is telling -a lie; and the ,wrath of Allah on herself if (her accuser) is telling the truth." (XXIV: 6 to 9). ,

40. Commenting on this Qur'anic Ordinance, A6dullah.Yusuf Ali says: "The case of harried persons is different from that of outsiders: If one of them accuses the other of unchastity, the accusation partly reflects on the accuser as well. Moreover, the link which unites married people, even where differences supervene, is sure to act as a steadying influence against the concoction of false charges of unchastity, particularly where divorce is allowed (as in Islam) for reasons other than inchastity suppose a husband catches a wife in adultery. In the nature of things four witnesses or even one outside witness would be impossible. Yet after such an experience it is against human nature that he can live a normal, married life. The matter is then left to the honour of the two spouses. If the husband can solemnly swear four times to the fact, and in addition invokes a curse on himself if he lies, that is prima facie evidence of the wife's guilt. But if the wife swears similarly four times and similarly invokes a curse on herself, she is in law acquitted of the guilt. If she does not take this step, the charge is held proved and the punishment follows. In either case the marriage is dissolved, as it is against- human nature that the parties can live together happily after such an incident:'

41. In respect of the second situation where an outsider explicitly accuses a chaste woman of unlawful intercourse, the Holy Qur'an prescribes the Hadd punishment as under:-- "And those who accuse chaste women (of unchastity) and produce not four witnesses (to support their allegations), flog them with eighty stripes; and reject their evidence ever after for such men are wicked transgressors; unless they repent thereafter and mend (their conduct); for Allah is Oft-Forgiving, Most Merciful" (XXIV: 4, 5).

42. Thus the punishment for slandering a chaste woman of adultery as prescribed by the Holy Our'an is (i) flogging the offender with eighty stripes and (ii) depriving him of the right of giving evidence in a Court of law." (iii) Dr. Abdul Karim Zeedan, Professor, Islamic fiqh at the Bughdad University Iraq in his book "ALVAHEEZ FI ASSOOL-UL-FIQH translated in Urdu as "JAMIA-UJ-ASOOL" by Professor Dr. Ahmad Hassan, Lahore, pp.103-4, writes:--

10. The evidence which has come on record - relates, firstly, to the accusation made by the respondent through his notice issued by his counsel, under his instructions and, secondly, the imputation made by him at the house of respondent in presence of witnesses. As regards the issuance of notice, it stands proved as the same has been admitted by him in the deposition made by him in the Court. The contents of notice (Exh.10) as to the allegation of the act of immorality committed by the appellant though denied by the respondent during his cross-examination in the complaint case before the learned Sessions Judge, but it is not believable in the face of the statement of Syed Ijaz Ahmad, Advocate as Court-witness who produced office copy of Exh.10 as Exh.36 which also bears endorsement by way of approval of the respondent, which goes to prove that the respondent has committed an offence under Qazf Ordinance, 1979. In paras S and 8 of the plaint filed by the respondent in G. & W. Suit No.622 of 1988 for custody of his two minor children, the respondent also appears to have made certain imputation about the moral character of the appellant by saying that she was passing her maximum time outside the house and that she was leading a corrupt life of loose character, thereby making an imputation that she was leading an immoral life may be read as further proof of the accusation made by the respondent against the appellant in the legal notice. The learned trial Judge has completely ignored these two pieces of evidence against the respondent, that is the accusation made in the legal notice and the plaint in G. & W. suit. Ostensibly the learned trial Judge appears to have been impressed by the fact of the respondent's well-being, high education and good character which is not at all relevant to the point at issue and cannot form a basis for acquittal of the accused. However, highly placed or educated a man may be, the question before the Court was whether or not he made accusation of adultery. So, the defence evidence is irrelevant.

11. Now, the question before us is whether the respondent should be convicted under section 6 or 10 that is for Qazf liable to Hadd or Qazf liable to Ta'zir. For the purpose of awarding Hadd punishment under section 6, the proof should either be in the form of accused making before Court of competent jurisdiction a confession of the commission of the offence of Qazf, which is not available in the instant case. As regards the second form, the accused of Qazf liable to Hadd should admit the same `in presence of the Court', which means "in the presence of the Presiding Officer of the Court." The respondent has not specifically admitted the offence. The third form is the evidence of two just witnesses. Two witnesses have indeed been produced by the prosecution but the process of Tazkivah-al-Shuhud does not appear to have been undertaken by the learned trial Judge which is an essential requirement for purpose of awarding Hadd punishment.

12. There is undoubtedly documentary evidence in the form of legal notice (Exh.10) admittedly to the appellant under instructions of the respondent which contains allegation against the appellant of having sexual intimacy with the two persons named in the notice.

13. Learned counsel for the respondent invited our attention to a written confession of the guilt but the appellant having not been confronted with the said writing, it is of little use to the respondent. Moreover, she has denied any such, statement in her cross-examination.

14. For the above discussion, we hold the respondent guilty of committing the offence of Qazf under section 10 of the said Ordinance and sentence him to six months' R.I., with whipping numbering ten stripes and fine of Rs.1,000 in default to undergo one month's S.I. The respondent, who is present in Court is ordered to be taken into custody and sent to the District Jail, Karachi. N.H.Q./742/FSC Appeal accepted.