1998 PLP 1080 (MLD)

6. The learned counsel for respondent No. l has contended vehemently that his case falls within the first and second exception to Article 3 of the said Ordinance. Article 3 of the said Ordinance reads: -- Qazf "Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes as 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 harmful 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-bil-Jabr' . (c) according to the finding of the Court, a complainant has made a false accusation of 'Zina' or ' Zina-bil-Jabr' . According to the learned counsel, the complainant/respondent No. 1 made an accusation of forcible excesses (JABRI ZIADATI) in good faith against appellant before the police station who had jurisdiction and lawful authority over the accused/appellant with respect to the subject-matter of accusation and factually the complainant/respondent No. 1 honestly believed that his minor daughter was subjected to excesses on 23-1-1994 by the appellant. According to him the word zina has not been used. Therefore, the word (JABRI ZIADATI) (forcible excesses) may mean any act other than zina like mishandling, embracing, kissing etc. I would have considered this contention to be correct, had the rest of F.I.R. coupled with the clear statement of victim under section 164, Cr.P.C. not clarified that the usage of the word forcible excesses (JABRI ZIADATI) is actually meaning, in the form of alternative, Zina-bil-Jabr and is. falling within the meaning of Explanation 2 to Article 3 of the said Ordinance which reads:-- "An imputation in the form of an alternative or expressed ironically, may amount to 'qazf'. The words used in statement under section 164, Cr.P.C. are:-- Under these circumstances, I am not persuaded by this contention and do hold that the word forcible excesses (JABRI ZIADATI) has been used in F. I. R. as an alternative for cohabitation caused by the appellant with the victim girl deceitfully inducing a belief of lawful marriage and within the meaning of Article 15 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. This is clear from the wording of that part of F.I.R. which is indicative that the victim was forced to sign and thumb-mark certain papers. Naturally then these papers concerned option of free-will, Nikahnama etc. Even otherwise, statement of the victim, under section 161, Cr.P.C. is clarifying the matter further to the extent that respondent No. 1, her father, must have been told the same story and at the time of the lodging F.I.R. be must have preferred in good faith an accusation of zina against the appellant to the police having lawful authority over the appellant with respect to the subject-matter of the accusation. The victim girl is stating in her 161, Cr.P.C. statement as under:

6. The learned counsel for appellant has relied on the principles set in 1992 SCMR 638 and AIR 1923 All

167. In the first case, Shariat Appellate Bench of the Supreme Court of Pakistan has found respondent Abdullah liable to hadd under Article 7 of the said Ordinance because he was falling within the mischief of the provisions of clauses (a) and (c) to second exception of Article (3) of the said Ordinance. The present case is totally distinguishable from the cited one as at the earlier stage, the F.I.R. was discharged and it was never sent to any Court of law. Respondent No. 1 has neither made an accusation of Zina against appellant in a Court, nor the Court has found him making a false accusation of Zina-bil-Jabr. So far as the second citation from Indian jurisdiction is concerned, the principle on which reliance has been placed is heading (b) which reads:-- "Punishment for defamation. However, defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.' This citation is misconceived as the said Ordinance is firstly totally different in its content and spirit in comparison to section 499 and 500, P.P.C., secondly that the provisions of second exception to Article (3) of the said Ordinance are differently laid and have their source in verse No.4 of the Sura Noor of the Holy Quran whereas P.P.C. as a whole is of human origin with Anglo-Saxon background and thirdly that according to Article 19 of the said Ordinance it shall have effect notwithstanding any thing contained in any other law for the time being in force.

7. The upshot of the discussion is that for the reasons discussed above, the impugned order is upheld and the appeal is dismissed. H.B.T./1163/FSC Appeal dismissed.