P L D 1997 Federal Shariat Court 5 (PLP)

"I am innocent and falsely charged. As a matter of fact I made a statement in the Court of Family Judge in good faith and for public good which has unfortunately been misconstrued, misinterpreted and even distorted to make out a case against me and thereby to pressurize me to send my niece to the son of the complainant and withdraw the litigation pending. in the Court of Family Judge, Mansehra." Muhammad Humayun also appeared as his own witness and produced three witnesses in defence. The defence evidence was intended to prove that imputation of Zina was not false but none of the witnesses including the appellant have deposed anything about commission of Zina by Mst. Mehr Niga with Ayub and Ghulam Sarwar.

4. The learned Sessions Judge, Mansehra on the perusal of evidence and after hearing the learned counsel for the parties vide judgment dated 13‑7‑1994 concluded that charge of Qazf against Muhammad Humayun was proved. He, therefore, convicted the appellant under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and sentenced him to punishment with whipping numbering 80 stripes.

5. Muhammad Humayun has challenged the judgment of the learned Sessions Judge, Mansehra in this appeal and the Sessions Judge has made reference for confirmation of sentence. These two matters are being disposed of by this single judgment.

6. We have heard Mr. Fazal Ellahi Siddique, Advocate, for the appellant and Qazi Shams‑ud‑Din, Advocate, for the respondent Mst. Mehr Niga. Learned counsel for the appellant contended that the statement before the Family Court Judge, Mansehra falls within the second exception of section 3 of the Qazf Ordinance as made in good faith before lawful authority. He was of the view that proceedings in the Family Court were of the rapture of collateral proceedings wherein even if the statement was made the appellant cannot be punished for Qazf. It is only in the cases of Zina that charge can be preferred and that also when there is a finding of the Court that the charge is false. He further contended that convict‑appellant had no intention to harm to reputation of Mst. Mehr Niga. There is no evidence how people reacted to the imputation and how Mst. Mehr Niga lost her prestige in the village. About the proof of Qazf liable to Hadd law provides for Tazkiyah‑ul‑Shuhood which was not done. In support of his contentions, the following case‑law was cited:‑‑ PLD 1985 FSC 384 1992 PCr.LJ 2403 1993 PCr.LJ 1872 (FSC); 1992 SCMR 638

7. Qazi Shams‑ud‑Din, Advocate, for the respondent, in reply argued that the appellant has made imputation of Zina against Mst. Mehr Niga and question of good faith does not arise. The statement before the Family Court cannot be taken an accusation of Zina before a lawful authority. Reliance was placed on PLD 1986 FSC

10. Learned counsel further contended that one of the forms for proof of Qazf liable to Hadd provided in section 6(b) of the Qazf Ordinance is that when accused commits Qazf in the presence of Court Tazkiyah‑ul‑Shuhood is not required. The appellant made imputation of Zina before the Family Court and persisted in the Sessions Court and failed to prove the imputation of Zina by producing four witnesses to substantiate the allegation. PLD 1992 FSC 427, 1992 SCMR 638 (Shariat Appellate Bench) arid PLD 1996 FSC 15 were referred.

8. Mr. Akhtar Naveed, learned State Counsel said that he would support the arguments of Qazi Shams‑ud‑Din, Advocate.

9. We have heard the learned counsel for the parties at some length and have perused the evidence on record. We are of the view that by making statement reproduced in para. (2) above, the appellant has made imputation of Zina against Mst. Mehr Niga respondent. We cannot subscribe to the view that accusation of Zina was made in good faith before a lawful authority and is covered under second exception of section 3 of the Qazf Ordinance. The appellant was not required to make such a statement in the suit for dissolution of marriage. No such ground was taken by the plaintiff in that suit. The appellant persisted in making imputation of Zina in his statement recorded under section 342, Cr.P.C. in the Sessions Court but failed to prove the imputation as true. The appellant has no doubt produced four witnesses including himself to prove the imputation as true but what they deposed is not about actual commission of Zina. They stated that once they had come to the house of Mst. Mehr Niga and found the door locked. They knocked the door but there was no response. After 5/10 minutes when the door was opened they had seen Muhammad Ayub and the complainant coming out of the room. This is no evidence to prove that the imputation of Zina was true. We may with advantage refer to the case of Muhammad Masood v. The State 1992 SCMR 638 (Shariat Appellate Bench) wherein it is held:

10. On the contrary the respondent Mst. Mehr Niga established the charge of Qazf against the appellant. Muhammad Ayub and Muhammad Anwar P.Ws. have testified that Muhammad Hamayun while appearing as witness in the dissolution suit of Mst. Farzana against her husband had charged Mst. Mehr Niga for committing Zina and reiterated the imputation in the village. Certified copy of the statement of the appellant made in the Family Court, Mansehra was also produced to show that appellant had in fact made imputation of Zina against Mst. Mehr Niga. The Court was not required to resort to Tazkiyah‑ul‑Shuhood when proof of Qazf liable to Hadd was available in one of the form provided in E section 6 of the Qazf Ordinance, in the case of Mst. Rabia Sultana v. Riaz Ahmad PLD 1992 FSC 427 it is held:‑‑ "Where any one of the three modes prescribed in section 6 is available, the offence shall be held to have been proved liable to Hadd." The appellant made imputation of Zina in Family Court and again before the Sessions Judge, Mansehra of course saying that it was made in good faith and was misconstrued and misinterpreted to make out the case against him and pressurise him to send his niece to the complainant and withdraw the litigation pending in the Court of Family Judge, Mansehra. We do not agree that statement was made in good faith and it was misinterpreted and misconstrued. The statement in clear words is an imputation of Zina against Mst. Mehr Niga. In Mst. Safia Bibi s case reported in PLD 1986 FSC 10 it is held:

Expression good faith' does not merely imply absence of ill‑will but presupposes reasonable degree of care and caution in making an imputation. Due care and attention further imply genuine effort on the part of the accused to arrive at the truth. Expression 'good faith' implies bona fide on the part of person making the allegation and defamation of the person "against whom such accusation is leveled."

11. In the above case Judge Family Court was not recognized as lawful authority over a wife and her child in the suit for maintenance by the wife against her husband. If the Judge Family Court is not recognized as lawful authority over a wife and her child in a maintenance suit we fail to understand how the Judge Family Court could have lawful authority over Mst. Mehr Niga respondent who was not even a party in the dissolution suit by Mst. Farzana Bibi against her husband, so as to extend to him the benefit of section 3, Exception 2 of the Qazf Ordinance. Recently in the case of Mst. Nuzhat Jabin v. Jamil Hussain Shah PLD 1996 FSC 15, a Division Bench of this Court in which one of us Dr. Fida Muhammad Khan, J. was a member had the occasion to examine the exceptions first and second in section 3 of the Qazf Ordinance. We may with advantage reproduce the observation made therein as below:‑‑ "It has been unanimously held by the Muslim jurists that although the above verse mentions the allegation made about the women, it also includes the imputation of Zina to men. Likewise the offence of imputation though attributed to men, it also includes the women who commit this offence. As such the offence of imputation of Zina and its punishment is equally applicable to male and female slanderer and slandered alike. It may be appreciated that the object of this Islamic Injunction is to check the slanders or scandalous suggestions about men and women if sufficient evidence could not be produced to prove the allegation of commission of Zina in the Court of law, as required. It follows that if anybody wants to make any allegation that an individual has committed Zina he must support the same by the evidence twice as strong as would ordinarily be required for other matters including even in murder cases. That is, four eye‑witnesses would be required instead of two, failing which the slanderer besides the sentence of whipping numbering eighty stripes as Hadd punishment would also be deprived of his fundamental civil right to appear as a witness in all matters all his life, unless he repents and shows that he is sorry for what he did, and makes proper assurance that he would not in future support by his statement anything for which he does not have the required evidence and thus he reforms himself. The Holy Qur'an has termed the persons involved in unsupported slanders or a charges of Zina against chaste persons as 'wicked transgressors' or 'evil‑doers'. All this shows the gravity of the offence of ' Qazf'. To make imputation of Zina concerning any person as "Qazf". It is however, necessary that the accusation of Zina should be clear in unambiguous words." We find that accusation of Zina in this case is very clear and is in unambiguous words, which the appellant has failed to prove as true.

12. Having discussed all factual and legal aspects of the case we are of the opinion that the impugned judgment calls for no interference in appeal by this Court. We had dismissed the appeal and confirmed the sentence by our short order dated 2‑4‑1997. The above are the reasons in support of that order. N.H.Q./1098/FSC Appeal dismissed.