1999SCMR935 (PLP)

MAULANA MUHAMMAD TAQI USMANI, J.

The appellant, Maqbool Ahmed has directed this appeal against the order of acquittal of his wife Mst. Bushra, respondent No.2 and Sh. Muhamamd Anwar, respondent No. 1. recorded by the learned Federal Shariat Court vide its judgment dated 31-10-1993, while they were earlier convicted by the learned Additional Sessions Judge, Lahore, on I1-2-1993 under section t0(2), Offence of Zino (Enforcement of Hudood) Ordinance. 1979 and each one of them was sentenced to five years' R.I, whipping of thirty stripes and to pay a fine of Rs.10.000. The police was set in motion to this case by the F I.R. lodged or) 13-12- 1991 in the Police Station Shahdara Town, Lahore, by the appellant Maqbool Ahmed wherein he accused his own wife Mst. Bushra, respondent No.2 of committing Zina with Sh. Muhammad Anwar, respondent No. l an 9-12-1991 i.e. four days before lodging of the report. The learned trial Court after framing the charge tried the respondents under section 10(2) and convicted and sentenced them as aforesaid. The learned Federal Shariat Court did not find the evidence produced by the prosecution sufficient to establish the charge against the respondents and, consequently, acquitted them. Leave was granted by A this Court on 28th June, 1994 to consider whether or not the judgment of the Federal Shariat Court was based on correct appreciation of evidence. Without going into the merits of the case and reappraisal of the evidence produced by both sides, it is worth mentioning that one important aspect of the case has been overlooked by the two Courts below. According to the Islamic injunctions, as well as in the scheme of the relevant law promulgated in the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Qazf Ordinance") when the husband accuses his wife of committing Zina with another person wilfully, and does not produce four eye?witnesses, the case should be dealt with in a way different from the other cases of Zina. In such a case, the wife has the right to demand the Court for conducting the proceedings of Li'an. The Holy Qur'an has specifically mentioned this procedure in Surah Al-Noor. The relevant verses thereof are as follows:

"And those who level a charge (of Zina) against the chaste women, then they do not produce four witnesses (in proof thereof), flog them with eighty stripes and do not accept their testimony any more and they are the transgressors, except those who repent after that and correct themselves, then surely Allah is Most Forgiving, Very-Merciful. And those who level charge (of Zina) against their wives and they have no witnesses except themselves, then one of them shall have to testify four times swearing by Allah that he is truthful (in his charge) and the fifth oath should be that he invokes the curse of Allah on himself if he is telling a lie. And it will remove the punishment from her that she testifies four times swearing oath by Allah that he (her husband) is a liar (in his accusation of Zina against her) and the fifth oath should be that she invokes the wrath of Allah on herself if he (her husband) is telling the truth (in accusing her of Zina). (Surah Al-Noor, verses 4 to 9)." These verses were revealed in it particular event reported by Imam Al?Bukhari and Imam Muslim both. One of the companions of the Holy Prophet (SAW) had asked him that if somebody finds his wife committing the shameful act of Zina what he should do. The Holy Prophet (SAW) did not answer his question and wanted for revelation of Allah whereafter the above verses were revealed. After that, the same person came to the Holy Prophet (SAW) and said to him that he himself faced the same situation about which he had asked him (i.e. he had to accuse his own wife of committing the shameful act of Zina). The Holy Prophet (SAW) recited before him the verses quoted above and after calling both the spouses told them that they will have to swear five oaths according to the precepts contained in the verses of the Holy Qur'an. Then he addressed the husband and advised him not to tell a lie against his wife and reminded him that the punishment of this world is far lesser than the punishment of the Hereafter. Then he addressed the woman in the same manner. But when both insisted on their own stand, then the Holy Prophet (SAW) asked the husband to swear four oaths by Allah that he is true in his allegation and the fifth one invoking the curse of Allah on himself if he is a liar. Then he asked the woman to swear four oaths by Allah that her husband is a liar in his accusation and the fifth one invoking the wrath on her if he was true in his allegation. When both of them swore the oaths, the Holy Prophet (SAW) dissolved the marriage between them. (Sahih Al-bukhari with commentary of Ibn Hajar, V. 9 p.393 and Sahih Muslim Kitabu-ul-Li'an with Takmilah Fathul Mulhim, V. 1 p.241). The basic philosophy behind these clear instructions of the Holy Qur'an and Sunnah is that if a husband accuses his wife of committing the shameful act of Zina, it has been taken as a very serious matter which should end up either by enforcing Hadd of Zina on the woman if the allegation is duly proved through four truthful eye-witnesses, or by punishing the husband if he does not prove his Allegation or belies himself when faced with Li'an. or by dissolving the marriage between them after completing the proceedings of Li'an. On the basis of these injunctions of the Holy Qur'an and Sunnah, the Muslim Jurists have detailed the precepts regarding the procedure of Li'an and its effects. According to the law of Li'an as explained in the books of Islamic Fiqh when a husband levels a charge of Zina in express terms against his wife, he will be asked to prove this allegation through four eye-witnesses of the standard prescribed for Zina liable to Hadd. If he fails to do so, the wife has a right to complain before the competent Court that his husband has levelled a false charge against her and on her demand the Court shall call the husband to undergo the procedure of Li'an as aforesaid. If both of them swear the prescribed oaths of Li'an, the Court shall dissolve the marriage between them and all proceedings regarding the allegation of Zina shall come to an end. If the woman, instead of swearing oaths, confesses the guilt of Zina in the prescribed manner, she will be liable to Hadd of Zina and if the husband belies himself in the allegation, he will be subjected to the Hadd of Qazf.(See lbn Qudamah, Almughni and Haskafi, Al-Durr-al-Mukhtar, V. 3, p. 485) ''These provisions of Islamic law have been incorporated in section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 which reads as follows: "(1) When a husband accuses before a Court his wife who is 'Muhsan' within the meaning of section 5, of 'Zina' and the wife does not accept the accusation as true, the following procedure of 'Li'an' shall apply, namely-- (a) the husband shall say upon oath before the Court; "I swear by Allah the Almighty and say I am surely truthful in my accusation of 'Zina' against my wife (name of wife)" and, after he has said so four times, he shall say' "Allah's curse be upon me if I am liar in my accusation of 'Zina' against my wife (name of wife)"; and (b) the wife shall, in reply to the husband's statement made in accordance with clause (a) say upon oath before the Courts: "I swear by Allah the Almighty that my husband is surely a liar in his accusation of 'Zina' against me". And after she has said so four times, she shall say "Allah's wrath be upon me if he is truthful in his accusation of 'Zina' against me". (2) When the procedure specified in subsection (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it. It is necessary to observe here that this section is a part of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 titled as "an Ordinance to bring in conformity with the Injunctions of Islamic law relating to the offence of Qazf and the reason for its promulgation is given in the preamble in the following words: "Whereas it is necessary to modify the existing law relating to Qazf so as to bring it in conformity, with the Injunctions of Islam as set .out in the Holy Qur'an and Sunnah." ' Therefore, all its provisions must be interpreted according to the Holy Qur'an and Sunnah and the rules and principles derived therefrom as Injunctions of Islani. Similarly, a situation which is not specifically addressed in this Ordinance shall be solved according to the Injunctions of Islam as aforesaid. Section 14 of the Ordinance regarding Li'an should also be read, interpretdd and acted upon in this light. A perusal of section 14 of the Qazf Ordinance trade, in the light of the Injunction of Islam as explained above would show that when a husband accuses his wife of Zina before a Court of competent jurisdiction, he shall be asked by the Court whether he is prepared to prove his allegation by producing four witnesses of the standard prescribed in subsection (b) of section 8 of the Zina Ordinance, 1979. If he is prepared to do so, the Court will proceed to record their evidence and decide the matter accordingly. But if the husband cannot produce four witnesses of the required standard, then the wife would have a right that, instead of being prosecuted for Zina liable to Tazir under' section 10(2) of the Zina Ordinance, she demands the husband to undergo the procedure of Li'an under section 14 of the Qazf Ordinance. Since the provisions of Qazf Ordinance, specially these of section 14 thereof are not generally known to the people, and particularly, the ladies are not normally aware of their right to ask for procedure of Li'an. The Court should explain to the wife that she is entitled to ask for Li'an instead of being tried for the offence of Zina liable to Ta'zir, and if she opts to ask for Li'an, the procedure given in section 14 of Qazf Ordinance should be followed. It both the spouses undergo the procedure by swearing the prescribed oaths, the Court shall pass an order to dissolve the marriage between them which shall operate as a decree for dissolution of marriage and no appeal shall lie against it. Thereafter, all proceedings in connection with allegation of Zina will come to an end. If the wife, instead of swearing the oaths, accepts the allegation of her husband as true, this situation is dealt with in subsection (4) of the section 14 of the Qazf Ordinance which reads as follows:-- (4) A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of ' Zina liable to hadd' under the imposition of Hudood for the offence of Zina Ordinance 1979. " However, two points must be noted here: Firstly, the words "accept the husband's accusation as true" in the above subsection (4) shall be construed to mean that the wife makes a confession of the commission of the offence as contemplated in section 8(a) of Zina Ordinance. The Hadd of Zina for a married person being of very serious nature, so much so, that the Muslim jurists did not find it sufficient for the conviction of cite wife in this case if she says: "I affirm the allegation of my husband". Instead, they have said that she must make an explicit confession before the Court that she had committed Zina. (See Al-Durral-Mukhtar 3:485. 486 and Almughni by Than Qudamah. V. 7, p.444) It is, thus, clear that subsection (4) of section 14 of Qazf Ordinance shall be read in the light of section 8(b) of Zina Ordinance. Obviously, the provisions of section 9(1) of the Zina Ordinance will also be applicable in such a situation. Secondly, this subsection is silent about a situation where the husband, instead of swearing oaths of Li'an, makes confession that he had levelled a false charge against his wife. This situation shall be met with according to verse 4 of Surah Al-Noor: "And those who level a charge (of Zina) against the chaste women, then they do not produce four witnesses (in proof thereof), flog them with eighty stripes and do not accept their testimony any more and they are the transgressors." In the light of this verse, the provisions of section 6(a) and section 7 of the Qazf Ordinance shall apply to award the Hadd of Qazf to the husband. Coming to the case in hand, it was the duty of the trial Court in the light of the rules and principles explained above, when it was evident that the appellant could not produce four eye-witnesses to prove the alleged occurrence, that Mst. Bushra, respondent No.2 would have been informed that she had a right to ask for Li' an. The trial Court as well as the learned Federal Shariat Court having overlooked this important aspect of the case, we deemed it proper to summon Mst. Bushra, respondent No.2. She appeared before us and made a complaint against her husband and asked to undertake the procedure of Li'an. We have explained before her the gravity of the matter and that swearing a false oath in very severe sin and she should not opt for it only to save her skin in this world. She insisted that the allegation of her husband, who had already married another woman before this occurrence, is totally false and she is prepared to swear the others. Similarly, we asked the appellant whether he still insists on his allegation. He insisted that his allegation is true. We warned him that swearing such oaths knowing them to be false is a very grave sin which incurs the wrath of Allah and he should not opt for it only to satisfy his inimical designs against his wife or to save himself from the punishment of Qazf. But he expressed his willingness to swear the oaths. At this stage we asked the appellant husband to swear first and he swore five oaths as prescribed by the Holy Qur'an. Then Mst. Bushra Bibi, respondent No.2 swore the oaths as prescribed by the Holy Qur'an for the wife. Since the procedure of Li'an is completed before us, we dissolve the marriage between Maqbool Ahmad, the appellant and Mst. Bushra Bibi, respondent No.2. The marriage between them stands dissolved. This judgment will stand for a decree of dissolution of marriage under section 14(2) of the Qazf Ordinance. No further proceedings under section 10(2) of the Zina Ordinance are now called for. This appeal is disposed of in the above terms. N.H.Q./M-266/S ??????????????????????????????????????????????????????? ??????????? Order accordingly.