' GUL. MUHAMMAD KHAN, C. J.-The appellant, his three brothers and father were charged under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 342/109 and 506, P. P. C. By the learned Additional Sessions Judge III, Muzaffargarh. Later only the appellant was convicted on the 5th of December, 1984 and sentenced as under :- {{DATA MISS ARANGE}} ' Under section 11 of Life imprisonment with Ordinance VII of 1979 whipping to 10 stripes and .a fine of Rs, 2,000 In default of payment of fine 6 months' R. I.
Under section 506, P. P. C. Three years' R. I.
Under section 342, P. P. C. One year's R. I.
' All the sentences were ordered to run concurrently. The occurrence took place at 4-00 p.m. In the house of the appellant situated in the main bazar, Muzaffargarh town. Manzoor Ahmad, P. W. 1, father of Mst, Kaniz Bibi, P.
Parvez Iqbal appellant to the Police Station. He further stated that during the resistance some injuries were caused to the appellant and Mahmoodul Hasan Akram. The Police got examined the injured accused and found minor injuries on their persons. No medical examination of Ma'. Kaniz Bibi was, however, conducted.
5. The prosecution examined 7 witnesses in support of its version. Manzoor Ahmad, P. W. 1 repeated the contents of his F. I. R. Noor Muhammad, P. W. 2 and Nizam. Din, P. W. 3, who are the brother-in- law of the complainant supported him in all material respects. Shaukat Ali, A. S. I. P. W. 4 testified to have recorded the F. I. R., in accordance with the report sent to him by the S. H.
0. Doctor Abdul Ghaffoor, P. W. 5 had examined the appellant, Mahraoodul Hasan Akram for their injuries. Mst. Kaniz 13ibi, P. W. 6, aged about 18 narrated how she was abducted by the appellant at the point of knife. Nizam Shahid, P. W. 7 made a statement about his investigation.
6. The appellant in his statement under section 342, Cr. P. C., denied in toto the case of the prosecution against him. When asked to explain his injuries he replied "On the day of occurrence at Dopehrwela a querrel between Mahmoodul Hasan Akram and Mazhar Iqbal on the one side and the complainant party on the other side took place on the throwing of rubbish by the complainant in front of our house. I sustained injuries from the hand of complainant party in that quarrel."
' In answer to another question as to why the case against him he stated as under :- "I have been falsely implicated in this case because of a quarrel between myself and Mahmoodul Hagan Akram on one side and the complainant and others on the other side due to throwing of rubbish by the complainant in front of our house. Mahammad Iqbal and Mazhar Iqbal were not present at the time of quarrel."
7. On a query why the witnesses had deposed against him, he stated it was due to their relationship with the complainant _ He also produced defence, D. W. 1, Din Muhammad deposed that he was neighbourer of the complainant and had been invited to the marriage of Mst. Kaniz Bibi which took place on the 12th of April, 1982 i,e,, a day after the occurrence. He further stated in ceremony of (t..),.41-.) the bride was to sit in a room and was not supposed to do any house-hold work.
Therefore on the day of occurrence .Mst. Kaniz Bibi was sitting in her room when the appellant and the complainant had a quarrel. The reason was that the complainant had thrown his rubbish opposite the house of the complainant on which the appellant protested and quarrelled as a result of which the accused received injuries.
8. In his cross-examination he admitted that he did not know the names of the persons of the complainant party, who caused injuries to the accused. He affirmed that Muhammad Iqbal and Mahmoodul Hasan Akram were medically examined but did not know the name of the person, who had taken them to the hospital. He admitted that the Police did not examine him. The above answers would show that either this witness' was suppressing facts or knew nothing about the occurrence. No reliance. Can, therefore, be placed on him. Muhammad Yaseen appeared as D. W.
2.1 He also stated that there was a quarrel between the parties on throwing of rubbish in front of the house of the complainant in which the accused party received injuries. The trial Court did not believe the defence pleas. It accepted the prosecution version and convicted and sentenced the appellant as stated above.
9. It is contended by the learned counsel for the appellant that the facts of the case show that the abductee was being married against her will and therefore, she jumped across the wall on the first floor and took refuge in the house of the appellant. He further submits that the parties compromised subsequently, and as a result, the prosecution did not press its case under the Arms Act, which arose out of same occurrence. None of the contentions, however, have any force. If the abductee was being married against her will how did she know that she will be given prosecution and refuge by the next door neighbours who allegedly had a quarrel some time back, who then latched the door from outside and why the appellant resisted the search when his father had no objection. Even the bricks on the wall of roof could not be dislocated if Mst. Kaniz Bibi had scaled over the wall of her own accord. We are, therefore, of the view that the case of the prosecution stands fully supported and proved. In this view of the matter, we do not find any justification on facts, as they are on record, to interfere with the order of the trial Court.
10. The next point arising in the case is whether the evidence of the other connected case, under the Arms Act, shows that the appellant, who was resisting search on the point of knife, was secured at the spot and produced before the Police at the Police Station. The fact that some resistance took place at the spot is proved by the injuries caused to the accused. Mst. Kaniz Bibi was also recovered from the house of the appellant which was latched from outside. Inside she had been crying. May be it is because of the quarrel on account of rubbish that this young man was taking revenge. In any case the first information was lodged without '.Delay. Even Mst. Kaniz Bibi supported the entire prosecution version.
11. The dislocation of bricks of the wall on the roof and the fact that Mst. Kaniz Bibi was crying shut in the room, door of which was latched from out side, further shows that force had been used against her. There is, however, nothing to show that her abduction was for the purpose of ,C illicit intercourse. The following portion of the statement of Mst. KanizI Bibi rather show otherwise :- "Accused Parvez Iqbal did not do any outrageous act with me in the room. He threatened me not to raise any cry because certain persons had gathered on his house, He stated that he would finish me if I raised clammeur. Accused Parvez Iqbal did not subject me to any incriminating immoral assault before dragging me into room. My father had never complained against his moral character before the incident (Voluntarily adds). We had no enmity against him."
The offence would thus fall under section 365, P. P. C. And not section 111D. Of Ordinance VII of 1979.
12. On the other hand, it is not believable that on a mere difference of the throwing of rubbish, the complainant would stake his daughter's honour. The admissions of Manzoor Abroad,. Complainant, P. W. 1 and Noor Muhammad, P. W. 2 are that they had appeared as witnesses in the Arms Act case and had respectively made statements Exh. D. A. And D. C. A perusal of their statements shows that they just did not press the charges against the appellant. It may, however, be appreciated that once the complainant granted forgiveness to the appellant, he could not retract' it and turn round to press the same charges. In fact the witnesses rant the risk of being proceeded against for the offence of perjury. In any case, looked at the case, from the view point of the ordinary law, the contradictions in the statements made in the two cases, arising out of the same facts, would have made the case of the prosecution doubtful and the only person likely to be benefited from this situation is the appellant. There) could have been two alternatives, either the present case had been concocted or the parties had compromised and the complainant extended them pardon.
Our consideration of the case, as in the last paragraph, leads us to the conclusion that the prosecution had proved its case. Thus the denial by the complainant party of the occurrence in the Arms Act case must be taken on the basis of some compromise. Further, as the cases before this Court were to be decided on the basis of Sharia and not the ordinary law the apparent compromise between the parties in the connected G case, under the Arms Act would afford protection to the appellant, in this case as well, to the extent the complainant had the authority in Sharia to do so.
13. The offences under the Islamic law, from the point of view of their proof, and punishment can be divided into 'Hudood' and `Tazir'. The offence of Tazir can further be categorised as 'in violation of Hut:1(3g Ullah' or 'in violation of Huqooqul Ibad'. It is settled that compromise, forgiveness or pardon, in respect of `fludood' offences cannot be allowed by the Wali or the victim unless it is done before the matter is reported to the Court This is based on the conception that as punishment for Hudood is fixed by Qur'an no one, in authority is entitled to intervene unless authorised by Qur'an or Sunnah itself. However, if the matter is not reported to the Court, the Wali or the victim may grant pardon or forgive. It has been related on the authority of Abdullah bin Umar that Holy Prophet said, " {{ARABIC TEXT}}ISZ laY"
(Forgive Hudood among yourselves but when a matter of Hadd comes before me, it becomes compulsory). (Abu Caud, Volume IV, page 362, Urdu translation).
14. It has further been related on the authority of Safwan bin-eUmayya who said, "I was sleeping in the mosque being covered with a woollen sheet the price of which was about 30 dirhams. A person came and took it away from me while I was asleep. Sensing that I got up immediately and ran after him. After catching him I brought him to the Holy Prophet. He confessed before the Holy Prophet who ordered amputation of his hand." On this Safwan said, "I did not intend this (amputation of his hand), I give him sheet as gift. The Prophet said," {{ARABIC TEXT}}"01 '5;.!.3"tY JI; lay L) 94.1"
(This should have been done before bringing him to me). (Ibid), p. 369).
15. However, for giveness is effective in Tazir, both by the wall as well as victim, if the matter concerns 'Huctooqul Ibad'. In this connection the Jurists are of the view that the forgivenees to the accused by the victim is effective only to the limit to which his personal loss or/ grievance is concerned ; for example if it be beating, abusing etc. But his forgiveness will not be effective in a `Tazir' matter if it relates to the rights of public or 'Hugooq Ullah' In this connection Abdul Qadir Auda writes, "
0i6" {{ARABIC TEXT}}31.7431^::31 S I,Q ,J 4c :-.164,41_," otls. Tir.. I t; 0.413) 016.01 tsi 45.101 (The victim has the right to forgive Tazir crimes but only to the limit to which his personal grievance is concerned like beating, abusing etc. But his forgiveness will not be effective in the matters of the public rights specially, the reforming of the accused. So when a victim forgave any accused, it will only be effective to the extent of his personal rights. (At-Tashri ul Janaiul Islami, Vol. I page 777).
(See also Al-Ahkamus Sultaniyya by Mawardi, page 207).
16. Even the Wali-e-Amr' has the authority to grant pardon in `Tazir' offences and may also remit the whole or part of the sentence if it is supported by an express provision of law. For example in case of `Haraba' the `Wali-e-Amr' has the authority if offender has not been apprehended and he voluntarily appears and repents. This is based on verse 34 of Surah `Maida' (5:34) which is Ct {{ARABIC TEXT}}47311.)11_1441; 1.5),X. (:)1 I VI"
' This pardon will be subject to his restoring or returning the property to the victim. The principle embodied is the same that in case of 'Hugooqul Ibad' ; it is the aggrieved person who must be satisfied. The `Wali-eAmt.' has also the rignt in respect of an offence created by the State but if an individual is also aggrieved, his right shall also have to be satisfied. According to Malik, Abu Hanifa and some Shatie and Hannle jurists a sentence cannot be remitted in 'Hudood offences' except in `Haraba' and that too as stated above.
17. The offence in the case in hand covers both 'Hugooqul Ibad' and' `Hugooq Ullah'. It appears from copies of the statements of the witnesses in the other case (Arms Act Case) that the complainant did extend his pardon with the result that the witnesses avoided pressing the case. Their evidence in the present case, however, seems to be factually correct. The charge against the appellant thus stands proved However, as L discussed in paragraph 11 above, the conviction under section 11 of Ordinance VII of 1979 recorded against him by the trial Court cannot be sustained. The same is, therefore, set aside. The appellant is convicted under section 365, P. P. C. Instead and ordered to serve a reduced sentence of 2 years' R. I. In view of the compromise. He shall, however, pay a sum of Rs, 10,000 as fine and in case of default in payment shall suffer 1 year's R. I., further. In case fine is paid, a sum of Rs, 5,000 shall be paid to the complainant under section 544-A, Cr. P. C. His sentence under sections 506 and 342, P. P. C. Is also reduced for the same reason so that he shall suffer 2 years' R. I. Under section 506 and 9 months under section 342, P. P. C. All the sentences shall run conccurrently. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.