P L D 1991 Federal Shariat Court 71 (PLP)

TANZIL-UR-REHMAN, C.J.

By this appeal, judgment dated 19-2-1991, has been assailed, whereby the learned Additional Sessions Judge, Jhelum, has convicted the appellant under section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance No.VIII of 1979 and sentenced him to two years' R.I., with forty stripes and a fine of Rs.10,000 in default to undergo further S.I. for six months. The appellant was also convicted under section 500, P.P.C. and solicited to two years' R.I.. and a fine of Rs.10,000, in default to undergo further S.I for six months.

2. The respondent No.2 Mst. Faqraz Bi, wife of Muhammad Bashir, riled a complaint under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance NO.VIII of 1979 and also under section 500, P.P.C. against the appellant wherein it was, inter alia, alleged that the said respondent was a married woman and living with her husband. About six years before the institution of the said private complaint her husband had gone to Saudi Arbia for employment and in his absence the appellant started blackmailing and demanding money from her and on her refusal, the appellant threatened her to teach lesson and destroy her matrimonial life. It was further alleged that the appellant blamed the complainant with false charge of adultery. The said complaint was forwarded to the Court of learned Additional Sessions Judge, Jhelum as the offence was exclusively triable by the Sessions Court.

3. The appellant was summoned and charged with both sections as aforesaid. The appellant pleaded not guilty.

4. On complinant's side, P.W.1 Mahmood Hussain, Secretary, Union Council was examined and the complainant examined herself as P.W.2. The appellant was examined under section 342, Cr.P.C. He also made statement on oath under section 340 (2), Cr.P.C. and examined one Abdul Hamid as defence witness.

5. The respondent No.2 (complainant) P.W.2 in her statement in Court stated that the appellant /accused filed an application in the Office of Union Council Phulrey Sayyadan wherein he levelled false charge of adultery against her and blamed her orally. The said application was totally false. It was further stated by her that the appellant had been fixing the pamphlets in the area in which he also charged her with false allegation of zina. The only witness examined by the respondent is Mahmood Hussain, Secretary of the Union Council. He produced the application filed by the appellant and the copies of the proceedings before the Union Council.

6. We have perused the allegation and the pamphlets and have also gone through the statement made by the appellant under section 340(2), Cr.P.C. There are clear statements of the appellant that he has "Ishiq-i-Haqiqi' with the respondent. By the word `Ishiq-i-Haqiqi' it was meant that he had illicit relations with the respondent which he had specifically denied in his aforesaid statement. The application and the two pamphets fall short of accusation of adultery but they certainly contain defamatory statement. Islam does not allow any one even to talk such things publicly about a married woman. The things which have been stated by the appellant so openly and assertively are bound to bring the respondent into disrepute.

7. In so far as oral accusation against the chastity of the respondent is concerned she ought to have produced two witnesses before whom the appellant is alleged to have sated to have illicit relations with her. Merely by producing one witness, Secretary of the Union Council, who when cross-examined sated that by the word of "real love" I mean illicit relations". Mere allegation of 'Ishiq-i- Haqiqi' will not amount to Qazf.

8. It is stated in Islami Qawaneen Hudood, Qisas, Diyat wa Ta'zirat, Qanuni Kutab Khana, Lahore, at pages 236, 237 and 239 (written by me) that

9. For the reasons discussed above, we set aside the conviction and sentence under section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance VIII of 1979. The conviction and sentence under section 500, P.P-C, is, however, maintained. Learned counsel for the appellant requests for reduction of sentence, but, in the circumstances of the case, viewed as a whole, we have no justification for reducing the sentence. The sentence of imprisonment as well as fine will remain intact. The appeal is dismissed with the above modification.

10. Learned counsel further requests for the benefit of section 382-B, Cr.P.C. In view of the circumstances of the case the request is declined. M.B.A./605/FSC Order accordingly.