1993 PLP 160 (SCMR)

JUSTICE MAULANA MUHAMMAD TAQI USMANI (MEMBER)‑‑‑This is an appeal against the acquittal of respondents Nos.1 to 7 recorded by the learned Additional Sessions Judge, Mianwali, vide his judgment dated 8‑7‑1987 and affirmed by the Federal Shariat Court on 31‑1‑1988.

2. It is, admitted by both the parties that Mst. Amiran Bano (respondent No. 6) was originally married to Muhammad Nawaz, the appellant in this case. It is the case of the prosecution that she was enticed away by respondents Nos.1 to 5 (Muhammad Aslam, Fateh Muhammad, Akbar Khan, Sher Zaman and Amir Khan). It was also alleged by the prosecution that Maulvi Abdul Khaliq, respondent No. 7 performed the Nikah of Mst. Amiran Bano with Muhammad Aslam, respondent No. 1 during the subsistence of her marriage with the appellant. The allegation against Muhammad Aslam, respondent No.1 was that he had enticed away Mst. Amiran Bano and committed illegal sexual intercourse with her. On the basis of the F.I.R. Exh. P.C. lodged by the appellant on 8‑2‑1985 a challan was submitted against Muhammad Aslam under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and also under section 16 of the same Ordinance. The other accused persons were charged under section 16 of the Ordinance as well as under sections 380, 411 and 109, P.P.C.

3. During the course of arguments before the learned trial Court it was found that Muhammad Nawaz the appellant in this case, who is husband of the accused Mst. Amiran Bano, has levelled a charge of Zina against his wife. The learned trial Court felt that this fact attracted the provisions of section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. He therefore, conducted the procedure of Lian provided under section 14 of the Qazf Ordinance and after going through this procedure dissolved the marriage and acquitted all the respondents. The learned Federal Shariat Court did not find any infirmity in the finding of the learned trial Court and dismissed the appeal of Muhammad Nawaz in limine.

4. Leave was granted in this case to examine:‑‑ (i) Whether this is a prerequisite for conducting the procedure of Lian that the wife demands her husband to undergo this procedure? (ii) Whether it is possible that the wife even after going through the procedure of Lian be punished for committing any Offence under the offence of Zina (Enforcement of Hudood) Ordinance, 1979? We heard the learned counsel for the parties and have gone through the facts of the case with their assistance.

5. With regard to the first question on which leave was granted, we find that the Muslim Jurists seem to be unanimous on the point that the procedure of Lian can only be initiated on the demand of the wife. (See Ibn Qudamah, AI‑Mughni, Vol. 9, p. 23, Alamgiriah V. I, p. 516 and Shami, Radd‑al‑Muhtar, Vol. 2, p. 637). This view has been adopted by the Offence. of Qazf Ordinance also in section 8 which reads as follows:‑ "

8. Who can file a complaint.‑‑‑ No proceeding under this Ordinance shall be initiated except on a report made to the police or a complaint lodged in a Court by the following, namely:‑‑ (a) if the person in respect of whom the Qazf has been committed be alive, that person, or any person authorised by him; or (b) if the person in respect of whom the Qazf has been committed be dead, any of the ascendant' or descendants of the person." The procedure of Lian is provided in section 14 of the Qazf Ordinance and is, therefore, governed by the condition laid down in section

8. Thus it is clear that the procedure of Lian should be undertaken only on the demand of the wife against whom the charge of Zina has been levelled by her husband.

6. In the instant case although there is nothing on the record to show that the wife had lodged a complaint or an application for Lian before the trial Court, yet it is evident that when the learned trial Court took a decision to undertake the procedure of Lian, neither Mst. Amiran Bano nor the appellant raised any objection to it. Rather, both of them fully participated in the procedure with their free will. The practical effect of the legal requirement of a `demand' from the woman's side is that the husband cannot be compelled to undergo the procedure of Lian unless the wife has asked the Court to conduct the procedure. There is no indication in the instant case to show that the husband was compelled to 'swear in Lian. Both the parties were duly assisted by their counsels who are supposed to know the legal requirements and consequences of the procedure. If the appellant had any objection to the Lian proceedings, he could easily raise the same before the commencement of Lian. But now when the procedure has been accomplished without any objection and the marriage has been dissolved, the Lian undertaken by the parties cannot be nullified at this stage on this technical ground alone.

7. The next point raised by the learned counsel for the appellant was that the procedure of Lian can be undertaken only when the husband levels a charge of Zina against her wife during the subsistence of his marriage with her. In the present case Mst. Amiran Bano has claimed that she was divorced by the appellant before he levelled the charge of Zina against her. As Mst. Amiran Bano did not admit to be the wife of the appellant at the time of Lian, the procedure of Lian was not justified.

8. We paid due attention to this point, but it is admitted by the learned counsel also that Mst. Amiran Bano did not lead any evidence to prove the alleged divorce. Conversely, the Chairman of the Union Council appeared to state that he did not receive any notice of Talaq from the appellant. As the previous marriage between Mst. Amiran Bano and Muhammad Nawaz is admitted by both the parties, the onus to prove the divorce was shifted to Mst. Amiran Bano. Since she was unable to prove it, the learned trial Court was justified to hold that such divorce was not given and the marriage between the parties was intact. The procedure of Lian is thus undertaken during the subsistence of the marriage and not after divorce. The participation of Mst. Amiran Bano in the procedure of Lian, by itself, shows that she admitted her inability to prove the divorce. The second question for which leave was granted is whether after the procedure of Lian; a wife can be punished in Tazir for the offence of Zina. Before going into this legal question we asked the learned counsel for the appellant whether the prosecution has led any evidence of Zina against Mst. Amiran Bano. The learned counsel fairly conceded that there is no such evidence available on the record. The only evidence against her is that she went to the house of Sher Zaman, her uncle, and lived with him for quite a long time where his son Muhammad Aslam was also present. It is obvious that this fact E alone cannot prove the offence of Zina against Mst. Amiran Bano. There is also no reliable evidence on the record to prove the offence of "taking or enticing away" Mst. Amiran Bano against the respondents. Thus, the acquittal recorded by the trial Court and affirmed by the Federal Shariat Court is fully justified on the basis of the facts only, and it is not necessary, with reference to the facts of the present case, to go into the legal question whether a punishment of Tazir under the Zina Ordinance, 1979 can be awarded to a wife after the procedure of Lian. That question may be examined in some other suitable case.

10. For these reasons the appeal is found to be without force and is hereby dismissed. N.H.Q./M‑1688/S ????????????????????????????????????????????????????????????????? Appeal dismissed.