1[4:he Piesent criminal appeal arises out of the following facts and circum- stances IR bn ull - ' '.**i-. , * , arriage between .1kbdul Rashid appellant and Mst. Safia 13ibi, ook'place on"4- 21 . On 30-5-198PMst. Safia Bibi gave birth, ' 1 Of1 ul Rashid, appellant. She filedIn'iliitOurt of Judge Family saitabad, a suit for dbivery and maintenance (Exh. P. A.) of her fe- k , tc. In his wilYtiiri`statement (Exh. P. B.) her husband Abdul pRejlAnt disowned title_ said female child and made allegation of agaiMflus Wife AM: Sa to 'respondent. A Punchavat was convened at Hameeda Begum's case PLD 1975 SC 624 and Muhammadan Law {{BLURR}} flOnr*"'fiT '1'-. The house of ,Malik Muhammad Din, Councillor of Chak_NO, 124/1. B. ;8'V.": ' H.r... . Ssan ,bad (Chuhar Majra), Faisalabad. Where the present appellant , alongwith his father is alleged to have said that he was not_ father of the I"' female child born to Mat. Safia, respondent and thattbe same wasithefesult of Zina committed by her. 4:6`, z,=, l' 1-';ur-,i I i: ,i;li Pfi ii; j1 cz.;1. A'
2. On 4-5-1982 Mat. Safia Bibi through her father 41arkat 'Alt as her special, attorney filed a complaint under section 3 read with secti,-)11 7 of the Offence of Qazf (Enforcement of Hadd)
Ordinance, 1979 (hereinafter referred to as the Ordinance), against Abdul Rashid, accused appellant intim Court of Sessions Judge, Faisalabad. She was directed toi present her complaint before the Ilaqa Magistrate. Accordingly, she presented the said complaint before the Ilaqa Magistrate. Since the matter was exclusively triable by the Court of Sessions, the learned Magistrate sent up the case to the Court of ';t- Sessions:Aidge, Faisalabad fortrial, who entrusted the same to the Addi-, tionallessions Judge, Faisalabad for trial. After recording the preliminary lo evidence .The learned Additional SesSiOns Judge found a Frima facie case :nil; against Abdul Rashid, accused and thOetbee, issued; warrants in the shin of !.)11,1 Rs, 2,000 against him.a Ma. 4ornplainant produced five witnesses in , zuj support of her complaint. y_.,.Ciself appearedaS P. W. ,I and deposed rii ,.- that she was married,., g; the,aCcnsed- Abdul Rashid on , 0,4,980 and her a dl . Eulchsorie 140 .PiVei:941+1,* day . ..She 4t410 for a ' 'tivergit ' Of ' 8':, days lifiliwithsheAegnAd 4444,yi s qiiVhen SiCatt otphpr paten rid* w.Th t3t Az t-s him foA arshortoperiod lands hereafter, . Has so eAl d I rig -'0ft,' ' liki0iba nd brit aak* 1,a4.
Bzip,:lmtki ovoiti,g;her parents. 4 e,i',AatiOut 8' ' months of her ;k.Sittnariiiage,lace,oidirig to th,eir,convention her father caMeto take ner with him t)-..,.11:tttitheiptispose,s,.,eitthe delive-ypf her first child. Lizis;plAted by her that at !J!.;;t1tU timelier husband}4144,Rarshid allowedAler to ,assompany, her father dAaid that if she would deliver amale child only thenlie#Ould come to taktIlierand if she woold.,gtiveibirth to a female child 'theiiifie`' would not come to take her. Her father.Was present at that tinie,;01.41tert the accused made theseiremarks. .She came to her father's lions,e;irf,"the same clothes -;WhichAbe)Was wearing, as she was not allowed tO,1#`14tOthe,4-'.Articles or 'ornamesits with her, -,Or? 30 5-1981 she gave birth.c/S:alediale'ehi'd. After this her husband Abdul, Rashid divorced herli She jiistyqitesti'Suit for dowery and maintenance etc., in the , C9iirt 12(C4dgellarally Court Faisalabad. Herhasband Abdul RaShidiiiilitS 'Wiitteill statement levelled the charge of Zina against her. According to tier, 0*as. a false allegation levelled by Abdul Rashid against her and by `doing Sof,liCihad injured her reputation and that,of her family knowingly. In crosi-exaMination she has deposed that notwof,,her4n-laws visited her after clelive04' She denied the defetieemiggesfibri- that ter rukhsati took place after 4 tiiiiiiihs,('"of marriage.
It tShfortherAented by her ,,that.,she infOrmed the accused thaTgliewas having relations.millLsome person before her marriage and that, she adiriiiited before theAtvg4ed that she had got-relations with oneiii ' till:Hag. She further r deOied)the defence suggestionuthat accusation 6 7:Ina, kgaihst her was oar t_ It: ks. actraitte4. 11, her that she came tokrOw of Ihe' accusation of yaiharlevitirig41 PgailiStbocifroni the written staternenc(Of the accused. It is riti-,kideniediiher- th,atidue,to litigation she had bionkhCitie present complaint H falsely..i; She however,. Admitted that she and her elder Sister Meena r.,.); were marred one and the same day. She denied the stiggisifiOn that the ;:2n rukhsatisif her: said sister tqok place on the sarne}day but ;6 iibt-of 11 own. .:- Trinsbm,it Ali,(POV. 2) hap stated that he knowS th'e parties i.-e,, ttig'comlalaitnantiatidAhe:- ftecusecra:nd he attended their marriage which took!L.Place about 2 vears:age Rukhsati of Mg Safia complainant took place on the day of marriage and she stayed with the accused far 8 days after the marriagt and 0: .n they came to her parents' house together and stayed for 2/3 days She has bec.i living with the accused as his wife since then. She deliverec a female child I months after the marriage. It is further deposed by tali; witness that he wa, a niemher the punchayat arranged by her father The accused levelled charge of Lad against her. TIL:n a second punchaya was arranged at Faisalabad. He alongwith Muhammad Tufail, Al Muhammad. Rahmaz Ali, f.Azal.Aluhantmad went to the house of Malit .Muhammad Din. Councillor of the loc lity who summoned the .Accused anc his lather where the accused and his father again levelled the allegation of Zina against Mat. Sofia, complainant. According to-the witness the complainala held a good moral character and the aceusatior Ie'clled by her husband was totally false. In cross examinatior he has admitted that he belongs to the brotherhood of Rarkat Ali, father ol the complainant but is not his uncle's son. He has goc relations with hem family and also attended all the ceremonies. He denied the defence sugges. Tion That rukhsati of the complainant did not take place on the day ol marriage. It is further denied by him that Maklawa of the complainani took pace after 4 months of the marriage. He further denied that the accusation of Zina levelled by the accused against the complainant was true, It is also denied by him that the accused never levelled allegation of Zina in the punchayat convened at Sahiwal. The witness has further denied that the complainant does not hold a good moral character. Muhammad Tufail (P. W. 3) has also made a similar statement that the marriage of vat. Safia. Complainant with Abdul Rashid, accused took place on 4-7-1980 and the rukhsati took place on the same day. After 11 months of the marriage, she gave birth to a female child and then rheir relations became strained. Firstly a pan, hayat was convened at Sahiwal and then at the house of Malik Muhammad Din. Councillor and he was member of the punchayat at Faisalabad. It is stated by tik witness that accused leveled the charge ol Zina against the complainaat and disowned the child. The father of the accused also levelled the same allegation against her. According to the witness Mst Safia Bibi complainant holds a good moral character. In cross-examination the witness has tated that he is not related to either side but is on visiting terms with the complainant only in marriages or funeral ceremonies. He has denied the suggest,on that the rukhsati of the complainant did not take place the same day. It is further denied by him that Makl twa ceremony took place after 4 months of the marriage. He further denied that he was making a fake statement due to relationship and that a false complaint had been tiled by Mst. Safia Bibi. Fazal Muhammad (P. W. 4) has also supported the complainant's version. According tc him, he knew the complai lam and the accused and their marriage took place two years before and the rukhsati took place on the same day. He has also supported the convening of the punchayat at the house of Malik Muhammad Din. Councillor. He was a member of that punchayat. The accused and his father levelled false charge of Zina aaainst the ccmplainant and disowned the child. In cross-examination this witness has stated that he is not from the brotherhood of the comalainant nor he belongs originally tc the same village. He howe'er, admitted that he was on friendly terms with the complainant's father as they attend each others functions, if called. He denied the defence suagestian that complainant's rukbsati did not take plice the same day. He further denied the defence suggestion that he was nuking a false statement because of relations and that the complainant had brought a false complaint due to enmity The last witness produced by the com. {{BLURR}} lainarr. Was her own father Barkat Ali (P. W. 5). De is also the special t.Orney of the complan.a.It for the purposes of the present case. He has laced on record the po,er of attorney (Exh. P. A.). He has stated that 1st. Safia Bibi was married on 4-7-1980 and rukl:sati ro.)k place the same ay. She stayed for 8 cla)s with her husband (accused) and then she eturned to her parent's house alongwith her husband. Afrer 2'.3 days both ettt back to Sahiwal and most of the period she has been living with her usband. It is, further deposed by this viL:..Less that he went to bring Mst. Aria Bibi to his house after 8;9 monrhs of the marriage when she was 'regnant for 6/7 months. At that time the accused said that if she would eliver female child then he would not come to have her company or tot ring her to Sahiwal. If she would deliver a male child only then he would ome to bring her. The complainant came empty handed alongwith this itness 2/2k months after this bringing of the complainant to Faisalabad, he gave birth to a female child. Aftet the delivery Abdul Rashid, accused ivorced his wife Mst. Safia Bibi. This witness has further stated that he tied to have reconciliation through Punchayat. Firstly punchayat was taken D Sahiwal and the second punchayar was held at Faisalabad at the residence 'f Malik Muhammad Din, Councillor. Abdul Rashid, accused and his ather again levelled charge of Zina against Mst. Safia Bibi, complainant.
He filed a suit for maintenance, dowery etc.', before Judge Family Court, at ;aisallbad. The accused submitted written statement Exh. P. B. Before the aid Court in which he levelled allegation of Zina against Alst. Safia Bibi nd asserted that he had never performed sexual intercourse with the omplainant after marriage. It was further asserted by the accused that 1st. Seta Bibi never lived with him as wife. It is further stated by this itness that Abdul Rashid accused brought a suit (Exh, P.
C.) for recovery f mc.Ley (Rs, 24000) against the complainant at Sahiwal, in which he sserted that the complainant was his legally wedded wife and had gone to er parent's house one year ago for attending a marriage. This witness has ategorically stated that the accused had levelled totally false allegation of ina against Mst. Safia Bibi knowing it to be false and with a view to injure er reputation and of her family. In cross-examination this witness has stated at Tufail (P.W.) is not his uncle's son but he is from his brotherhood. He as however, admitted that Rahmat Ali is his real brother. It is further lmitted by this witness that his elder daughter was also married the same ay.
He however, denied the defence suggestion that raid:sari of sr. Safia ibi did not take place on the same day. He further dewed the suggestion tat Mg. Safia Bib; lived with him frr four months after marriage. This itness has also admitted that the litigation is pending between him and the :cused.
He however, denied the defence suggestion that the charge levelled y the accused was true.
3. Abdul Rashid, accused in his statement recorded under section 342, r. P. C. Denied the prosecution allegations. He however, admitted that is marriage with Mst. Safia Bibi complainant took place on 4-7-1980 and serted that rukhsati took place after 4 months of the marriage. He further .Vied the prosecution allegation that M r. Safia Bibi was pregnant from m when she was brought to Faisalabad by her father and has areged at he never performed any sexual intercourse with her from the date of arriage till divorce because he was unable to perform the sexual interairse due to illness. When asked whether he levelled false charge of Zina ;ainst the complainant to injure her reputation, firstly, in the punchayat .1d. At the house of Malik Muhammad Din and secondly he alleged Zina {{BLURR}} against the complainant in written statement in the suit for maintenance brought by her, be denied this suggestion that he levelled the charge of Zina in the punchayat because no punchayat took place. He however, admitted that he levelled charge of Zina against Mst. Safia Bibi complainant in his written statement but that was true. When asked why complaint had been brought against him and why P.W's. Made statements against him, he replied as under :- "I do not know the reason for the complaint but the facts are that it has been filed as a retaliation to my pronouncement of divorce against the complainant. The witnesses have made statements ttgainstoe:because of their relationship and friendship with the complainai,:'s father."
When asked if he would produce defence, he answered in the,af4rmative. In his supplementary statement recorded on 4-8-1982 Abdul Rashid, accused stated as under :- "I was married to Safia four months before rukhsati. Rukhsati took place and she accompanied me to Sahiwal. I was having some sex problem: therefore, I was not in a position to perform the sexual intercourse with Safia. When rukhsati took place SafiaaPneared to be pregnant. Safia stayed for 10/12 days. Then came to Faisalabad accompanying her mother. As we were having strained relations, she came back to Faisalabad. Six months after rukhsati the child was delivered by Safia.
On this fact I immediately ,divorced her. I had also mentioned this fact in my divorce deed. - The female, child doeS,I1of belong tblinei I close my defence evidence."
4. Abdul Rashid, accused produced two witnesses: in defence. Abdul Sattar (D. W. 1) has stated that Abdul Rashid accusedt,was; niarried two years and 3 months ago and the Nikah ceremony took place some time before marriage and rukhsati took place after 4 moths of the marriage. ,etE After 2/3 days: of rukhsati, women folk started to talk that Mst. Safia Bibi in was pregnantsfof kast 3/4: months., She went for the first time to the house of Atxdarftashiddatithelitte of rukhsat& . According to this %fatness, ter from thelgirPumstancesilkitdtppears that the child does not belonto Abdul 2Z Rashid whO had no access);olthe complainant Vrior to ukhsati. Iif'ecassexaminatioti this witness has Admitted-That he was never pre4ent in Nikah -vt ceremony or marriage or) rukhsati land he never visited the.Bouse of the complainant. It was Abdul; Rashid, accused himself who had infartned the witness that,a Nikah had taken place with one Safia. It is admitted by this witness that he heiongs to the brotherhood of Abdul Rashid accused. It is further admitted by him that Abdur Rashid had brought him to the Court to give esidence and he had paid the expenses of the witness. This witness could not say with certainty if Abdul Rashid accused might have met Safia even before rukhsati because he never4accompanied him. He denied the suggestion that rukhsati took place on the same day of marriage and that Saha did not visit the house of the 4cusecl immediately after marriage. The Witness was informed by Akbar Bibi that Mst. Safia was pregnant. It is adOitted by him that he had got no personal knowledge about this. Abdul Rashid accused never made these remarks before him. None of the members of the family of Abdhl Rashid talked about the fact on the day of takh,ati or even after that ,41st. Safia Bibi appeared to be pregnant before rukhsati. It is also stated by this witness that none from the accused side ever made any complaint about this fact. It is admitted {BLURR}} by him that at he time when the complainant was mature with delivery, she was brought to Faisalabad by her father. He denied his knowledge about any punchayat held at Saha:val. He also denied the suggestion that Mst. Safia was not pregnant at the time of rukhsati and that he was making a false statement because of Muhalledari and brotherhood of the accused. The second witness: produced by the defence is Muhammad Aslam (D.W. 2). According to hin,. Abdul Rashid's Nikah took place two years and one month ago and there was no Barat. It was after 4 months of Nikah that rukhsati took place. After 4 days of rukhsati women started talking that Mst. Safia appeared to be pregnant for 3/4 months. She stayed with her husband and then came to Faisalabad. She delivered the child after 6 months of ber rukhsati. In cross-examination the witness has denied the suggestion that he is the real brother of the accused. But be was on visiting terms with the acetified family. He has admitted that he was not present in Nikah, marriage or rukhsati ceremony but be was verbally informed by the father of the accused that they had gone to Faisalabad to attend the marriage of Safia's sister and Safia had been given in Nikah to the accused the same day. It was openly published in the village by the women-folk that Safia was pregnant before rukhsati but he could not give the name of any such woman. It is further stated by this witness that he was informed by the accused that he was under treatment for some sex disease and Sufi of Chak No, 73 who was a Hakeem was treating the accused. The witness never asked the accused if he was suffering from some disease.
5. The trial Court vide impugned judgment dated 7-8.1982 found Abdul Rashid accused guilty under section 11 of the Ordinance and sentenced him to undergo R. I. For one year plus 10 stripes and a fine of Rs, 2,000 or in default of payment of fine further R. I. For 3 months.
6. Hence this appeal.
7. It is vehemently contended by Mr. Nimat Khan, the learned counsel for the appellant that charge of Qazf under section 11 of the Ordinance has not been legally proved against the appellant.
According to Mst. Safia Bibi, complainant, when her father Barkat Ali came to her in-law's house to take her to his house for the purposes of first delivery as is customary, Abdul Rashid, appellant had said at that time that if she gave birth to a male child then be would come to take her back and if she would give birth to a female child then he would not come to have her. This version is supported by Mst. Safia Bibi complainant as well as her father Barkat All P. W., who was present at that occasion. I have minutely scrutinized their statements and find that this aspect of the case has been duly established by these two witnesses. The defence could not shake their credibility on this issue. In fact no specific question in cross-examination was put to these witnesses about this particular aspect of the case. In these circumstances I find that the prosecution has established this issue against the accused appellant. This conclusion gets support from other circumstances of the case. If the appellant really did not have any sexual intercourse with her due to bis incapability and Mst. Safia Bibi, complainant was already pregnant from somebody else and her character was really loose and the women folk had started talking about her pregnancy immediately after her arriva in the house of the appellant immediately after the marriage then he should have disclosed this fact to her and other people openly. There is nothin op the record to show that the appellant indicated this fact in any manna to anyone before the actual delivery. If he was really impotent and unable to perform sexual act due to any reason and his wife Mst. Safia Bibi was already pregnant when she came to his house after marriage, like ordinary prudent husband he should have shown his resentment in some form against her pregnancy. Silence on his part is a clear indication that the version of his wife Mst. Saha what he said about the result of her delivery-the child being male or female, is true.
8. According to Ms:. Safia, respondent, her husband Abdul Rashid, appellant made allegation of Zina against her at three different occasions-in the punchayat at Sahiwal and then in the punchayat at the residence of Muhammad Din, Councillor, Faisalabad and in his written statement Exh. P. B. Filed before the Judge Family Court, Faisalabad. Although the prosecution has produced several witnesses to prove thecrallegation of Zina made by the appellant before the punchayats at Saniwai and Faisalabad yet even if this part of the case is kept out of consideration the factum of levelling of allegation of Zina by Abdul Rashid, appellant against Mst. Safia stands otherwise proved. Beyond any shadow of doubt. It is an admitted fact that Abdul Rashid, appellant in his written statement Exh. P. B. Filed before the Judge Family Court, Faisalabad, has levelled this allegation of Zina against Mst. Safia and also disowned the female child of Sat'ia, respondent.
Further, he has admitted this fact in his statement recorded under section 342, Cr. P. C. While replying question No, 4, Abdul Rashid, accused appellant in categorical terms admitted that he levelled charge of Zina against Mst. Safla, respondent in his written statement but that was true. It is further admitted by him that the female child did not belong to him. In support of this allegation the appellant has advanced several reasons. One staid taken by the appellant is that he was married to Saha, respondent 4 months before her rukhsati. In other words, her rukhsali took place after 4 months of her marriage on 4-7-4980 and when she went to the house of her husband the woman folk started talking that she was already pregnant by 3/4 months. Whether rukhsati took place on the day of marriage or 4 months thereafter, is a pure question of fact which has to be proved by evidence direct or circumstantial. It is an admitted position that the marriage of the appellant with Mst. 'Saha took place on 4-7-1980. As regards her rukhsati there are two versions.
According to the complainant and her father Barkat Ali (P. W.) her rukhsati took place on the same day i. e., 4-7-1980. On the other hand the defence suggestion is that her rukhsari took place 4 months after 4-7-1980. No reason has been assigned by the appellant as to why the rukhsati did not take place on the day of marriage but 4 months thereafter. It is not denied that Mst. Safla was major on the day of marriage and there is nothing on the record to suggest why her rukhsati could not take place on that day. General practice in our society is that marriage and rukhsati take place on the same day unless there is a special reason to show to the contrary. If for example Mst. Safia had been minor or there was some other financial problem then rukhsati could take place subsequently. Even then there should be some reason for performing Nikah without rukhsati. It is an admitted fact that the marriage of elder sister of Mst. Saha also took place on the same day and there were, therefore, two barats on the same day which reached the house of Barkat Ali (P. W.) father of the girls. The defence has suggested in cross-examination to practically all prosecution witnesses that the rukhsati of Mst. Safia took place 4 months after her marriage but all have categorically denied the defence suggestion and have asserted that in fact rukhsati took place on the same day of marriage i. e., 4-7-1980. The defence has suggested no reason why rukhsati had taken place 4 months after the marriage. The defence has produced no positive evidence in support of this suggestion. Abdul Sattar (D. W. 1) has asserted in his examination-in-chief that rukhsati took place after 4 months of marriage but in cross-examination he has admitted that he was never present in the Nikah ceremony or marriage or rukhsuti and he never visited the house of the complainant Mst. Safia. It is further stated by this witness that it was Abdul Rashid, accused himself who had informed him that his Nikah had taken place with one Safia. After this admission the testimony of this witness has lost all significance. His statement is based upon mere hearsay. Same is the position of Muhammad Aslam (D. W. 2). He has also admitted in cross-examination that he was not present in Nikah, marriage or rukh ati ceremony but was informed verbally by the father of the accused that they had gone to Faisalabad to attend the marriage of Safia's sister and Safia had been given in Nikah to the accused the same day. It is not disputed that if the marriage and rukhsati had taken place on different dates, :he same could easily be proved by producing direct evidence of persons who c had participated in those ceremonies. Thus, it is established beyond any doubt that the marriage and rukhsati of Mst. Safia took place on the same day i. e. 4-7-1980 and not 4 months thereafter, as suggested by the defence.
9. As regards the allegation that Mst. Safia, respondent was pregnant by 3/4 months, when she reached her husband's house on the first occasion after her marriage, the defence has not produced any direct evidence in support of it. Abdul Rashid appellant has made this allegation in his statement and this suggestion has also been made in cross-examination to the prosecution witnesses, who have denied the same. Abdul Sattar and Muhammad Aslam (D. Ws.) have asserted that 2/3 days after her rakh ati, the women folk were talking about Safia's pregnancy but both these witnesses as mentioned above, have no direct knowledge and their statements were based upon hearsay evidence. It has already been held above that marriage' and rukhsati of Mst. Safia took place on the same day i. e., 4-7.1980 and admittedly she gave birth to female child on 30-5- 1981, hence the question of pregnancy for 3/4 months on her first arrival in appellant's house would not arise. Moreover, the conduct of the appellant as an ordinary husband goes against him. If his wife was really pregnant before her rukhsati, and women folk were talking about it. He should have indicated his resentment or protest against it in some form. He could disclose this to Mst. Safia or her father and mother. This was a serious matter and, therefore, on this issue he could be justified even to divorce her. Thus, the proper stage for divorce on the alleged ground, was, that the moment he came to know stout her said pregnancy, he should have reacted in that manner and should have divorced his wife Mst. Safia at that stage. There was no legal bar in his way not to do so, but it is an admitted fact that he neither divorced his wife at that stage nor otherwise he protested against such pregnancy to anyone in any manner. As mentioned above he divorced his wife on 19-12-1981 when she had already given birth to a female child earlier on 30-5-1981. This circumstance also supports the above version of the wife and goes against the defence suggestion.
10. Another circumstance suggested by the defence in this behalf is that Abdul Rashid was having some sex problems and, therefore, was not in a position to perform sexual inner course. In other words, the appellant was not capable to perform sexual act and, therefore, a female child born to his wife Mst. Safia could not be his legitimate child. It is not disputed that in such a situation if the appellant was claiming to be impotent or was incapable to perform sexual act and was suffering from some sex disease, the onus would be upon the defence to prove his impotency or sexual incapability. Again such impotency or incapability to perform sexual act could be established through medical evidence but the defence failed to produce any such evidence to substantiate this plea. Moreover, the appellant could not remain mum till the female child was born but he should have raised this issue at the earliest when pregnancy of his wife Mst. Safia became visible or known. Thus, silence on the part of Abdul Rashid appellant till the birth of the female child also goes against hi bona fide and supports the version of Mst. Safia, complainant.
11. Further, it is not disputed that the proper course for the appellant in this behalf was to initiate Lian proceedings against his wife regarding the allegation of Zina. It is an admitted fact that he took no action whatever regarding proceedings. This circumstance also goes against the defence.
12. Another argument advanced by the learned defence counsel is that the offence of Qazf has not beer established against the appellant. 'Qazf' has been defined under section 3 of the Ordinance as under-:- "3. Whoever by word either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of Zina concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation, or hurt the feelings, of such person, is said, except in the cases hereinafter excepted, to commit Qazf."
' It is an admitted fact that the appellant in his written statement Exh. P. B. And in his statement recorded under section 342, Cr. P. C. Has made allegation of Zina against Mst. Safia respondent. He has further disowned the female child born on 30-5-1981. It is not disputed that in our society allegation of Zina and disowning one's child is serious imputation which affects the reputation of the person concerned and his/her family. It is admitted that such allegation is bound to adversely affect the future of Mst. Safia as well as her female child. The appellant knowingly made this allegation of Zina against Mst. Safia respondent and disowned his female child and therefore, provisions of section 3 of the Ordinance would clearly be attracted.
13. The learned defence counsel has also contended that the case of the appellant is covered by second exception of section 3 of the Ordinance which is reproduced below :- "Second Exception (Accusation preferred in good faith to authorised person)-Save in the cases hereinafter mentioned, it is not Qazf to prefer in good faith an accusation of Zina against any person to any of those who have lawful authority over that person with respect to the subject- matter of/accusation."
' A perusal of the above shows that there are two main ingredients of this exception namely,-
(a) when accusation of Zina is preferred in a good faith against any person ; and
(b) the accusation is made to any of those who have 'lawful authority' over that person with respect to the subject-matter of accusation.
The expression 'good faith' has not been defined in the Ordinance. It is, however provided in section 2 (b) of the Ordinance that all other terms and expression not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code or the Code of Criminal Procedure, 1898. In section 52 of the Pakistan Penal Code this expression 'good faith' has been defined as under :- "'Good faith' . -Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention."
This definition is in the negative. This expression is also used in several other sections of the Penal Code. Section 79 of the Pena Code is also relevant dealing with 'good faith' and is reproduad below :- "Art done by a person justified, or by mistake of fact believing himself justified, by law.-Nothing is offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it."
However, the General Clauses Act, .1897 has given positive definition of this expression in the following words ,- "3 (20) a thing shall be deemed to be done in 'good faith' where it is in fact done honestly whether it is done negligently or not."
' This expression is also defined in other statutes but in view of section 2 (b) of the Ordinance it is not relevant and necessary to examine all such definitions. Thus, 'good faith' does not merely imply absence of but pre-supposes 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.
In the instant case appellant Abdul Rashid has placed on record no material-direct or circumstantial to show that he exercised due care and attention or pre-caution before levelling the allegation of Zina against his wife. It is further clear that the expression 'good faith' implies bona fide on the part of the person making the allegation and defamation of the person against whom such accusation is levelled. Again in the instant case Abdul Rashid, appellant has produced no evidence to show his bona fide that he levelled the accusation of Zina against his wife Mst. Safia in good faith. The record is completely silent about the bona fide of the appellant-rather mala fide intention of the appellant and defamation of the respondent are clearly demonstrated. It is well- settled now that if any person wants to rely upon 'good faith' the onus will be upon him that he acted in good faith. The appellant however has failed to discharge this onus-rather it is clear that he made this accusation against his wife in bad faith. It can, therefore, reasonably be held that the appellant, in the circumstances of the case, did not exercise due care and attention and consequently did not act in good faith while making the allegation of Zina against his wife.
14. As regards the second ingredient of the second exception of section 3 of the Ordinance, namely 'lawful authority' the argument of the learned defence counsel is that the husband (appellant) made this accusation in his written statement filed before the Judge Family Court where the suit for maintenance etc., was pending. According to the defence, counsel the expression 'lawful authority would include that trial Court i. e., the Judge. Family Court as according to him, during the pendency of this suit that Court will have lawful authority over the minor female child and he mother. The expression lawful authority has neither been defined in the Ordinance nor in the Penal Code but it has been defined in several other statutes. In the Constitution of Pakistan this expression has been used in Article 19' .=and several other Articles and has been the subject- matter of interpretation before the superior Courts including the Supreme Court. The expression `lawful authority' has also occurred in some other statutes and has also bee defined in law dictionaries. The expression 'lawful authority' implies that authority which is recognised, authorised, supported or warranted by law and is not forbidden by law. In other words this expression include both positive and negative aspects of the matter. The learned defence counsel has not been able to point out any provision of law authorising the Judge Family Court while dealing with suit for maintenance of minor child as having lawful authority over such child and her mother. It is established principle that in a case of this type a person who raises such a plea the burden of onus would be up him to establish the same but the appellant has failed to discharge the same. Further 'lawful authority' means that legal authority where relationship of guardian and ward is established between them and such relationship established by such means which are lawful and legitimate; The Judge Family Court in a case of this type is neither a natural guardian nor a legal guardian or a guardian appointed or made in lawful manner by a competent person or authority. The Judge Family Court in the instant case has nothing to do with the care and custody of a minor female child or her mother. It is not disputed that the expression 'lawful authority' has been used I general sense to cover any person who could have lawful authority over the ward e. g. a husband can legitimately claim lawful authority over his wit and his children. Similarly father/mother can have lawful authority Wye. His/her children. A guardian can also have lawful authority over his ward whether appointed by the Court or otherwise. Similarly a master can claim such authority over his servant. I however, fail to understand ho in a for maintenance of a minor child, the Judge Family Court can be said to have any such lawful authority over that child or her mother Mst. Safia. As mentioned above the dispute before the Judge Family Court is regarding the maintenance of the female child etc., and there is no dispute regarding appointment of guardian etc. Of that female child. In the circumstances of the case, therefore, I feel no hesitation to hold that. The Judg Family Court by no stretch of imagination can be said to have. Lawful authority over Mst. Safia or her child as contemplated by second exceptior of section 3 of the Ordinance. The result is that both the ingredients of the second exception have not been established in the present case and con sequently this exception cannot be attracted and applied to the facts of the present case.
15. Another argument advanced by Mr. Nimat Khan, the learned counsel for the appellant is that since maintenance proceedings are still pending before the Judge Family Court and the appellant is likely to succeed in proving the contents of his written statement filed before that Court, there fore, his trial under Qazf Ordinance could not proceed or the said criminal proceedings should have been stayed till the final decision by the Judge Family Court because the decision of the Judge Family Court regarding legitimacy and illegitimacy would be binding on the criminal Court, as that judgment would be judgment in rem under section 41 of the Evidence Act. The jurisdiction of a Family Court under section 5 of West Pakistan Family Courts Act, 1964 is exclusive to entertain, hear and adjudicate upon matters specified in the Schedule namely,-
(I) Dissolution of marriage;
(2) Dower;
(3) Maintenance:
(4) Restitution of conjugal rights;
(5) Custody of children
(6) Guardianship ; and
(7) Jactitation of marriage.
' In the instant case we are concerned only with 'maintenance' as suit filed b Mst. Safia before the Judge Family Court is to claim maintenance for her female child etc. We will, therefore, examine the nature of the jurisdiction of the Family Court regarding such 'maintenance'. For the purposes o `maintenance' section 20 of the Act is relevant which is reproduced below :- "20. Investment of powers of Magistrates on Judges.--Government may invest any Judge of a Family Court with powers of Magistrate,' First Class to make order for maintenance under section 488 of the Code of Criminal Procedure, 1898."
' By Notification No, Integ. 10-31/64-1, dated the 5th April, 1966, th Governor of West Pakistan in exercise of powers conferred by section 20 of the West Pakistan Family Courts Act, 1964 referred to above, has invested all Judges of the Family Courts with powers of Magistrates of First Class to make orders for maiaenance under section 488 of the Code of Criminal Procedure. This notification reads as under :- "In exercise of the powers conferred by section 20 of the West Pakistan Family Courts Act, 1964 (XXXV of 1964), the Governor of Wes Pakistan is pleased to invest all Judges of the Family Courts wit powers of Magistrates of First Class to make orders for maintenance under section 488 of the Code of Criminal Procedure, 189 (V of 1898)."
' Thus, a Family Court functions in duel capacity. It acts as matrimonial Court with respect to matters of dissolution of marriage etc., and it also acts as a quasi criminal Court while dealing with maintenance under section 488, Cr. P. C. In the instant case we are only concerned with `maintenance'. On the legal plan if the Family Court decides a matrimonial issue its judgment will be binding not only on the parties in the case but upon the whole world and such judgments would be termed as judgment in rem. The question however which arises for consideration is whether in the instant case the judgment of the Family Court regarding the maintenance o a female child and Mst. Safia would be a judgment in rem or not. A mentioned above while deciding the question of maintenance the Family Court would be exercising powers of a Magistrate First Class to make order under section 488 of the Code of Criminal Procedure and, therefore, will be acting as a quasi criminal Court and consequently its judgment will be judgment in personam not judgment in rem.
16. As regards the general question that the same issue of legitimacy or illegitimacy of the female child is the subject-matter before Family Court, it is well-settled now that criminal proceedings and civil proceedings can side by side proceed between the same parties because the functions of criminal and civil Courts are different and each Court has to decide the case in accordance with the evidence produced by the parties before it. In other words, on Court will not be influenced by the finding of fact given by the other Court between the parties. For instance, in the instant, case the criminal Court was to decide whether the prosecution bad established the guilt of the accused beyond any doubt or not and this was to be decided on the evidence produces by the parties before that Court. The trial Court could not rely upon an finding of fact given by the Judge Family Court regarding any issue between the parties. Similarly the Family Court is to decide the case on the basic of evidence produced by the parties before it and it will not be influenced by any finding of fact given in the criminal case. It is well-settled now that all proceedings must be decided on their own facts and the judgment of the "Family Court/Civil Court will not be relevant for the purposes of criminal case pending before this Court. The Privy Council in the case of Kuma Gopika Raman Roy v. Atal Singh and others (1) enunciated this principle in the following words :- "In their Lordships' opinion these statements are not admissible a evidence of rents having been realized from the defendants in that suit. The Indian Evidence Act does not make finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case."
' The above principle was followed by the Supreme Court of Pakistan in Mst. Naseer Begum's case (2), late Chief Justice Hamoodur Rehman whip delivering the judgment of the Full Bench was pleased to observe as under: "Learned counsel appearing in support of this petition reiterates the contention that the judgment of the civil Court should have been take into account, before arriving at a decision in the criminal case. We are unable to agree, because, as pointed out by the Privy Council in the case of Kumar Gopika Raman Roy v. Atal Singh 'the Evidence Act does not make a finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case.' Thus, a judgment in a civil Court, as pointed out by M. Munir in his Law of Evidence 'is not admissible in a criminal proceeding to establish the truth o the facts upon which it is rendered. In a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence before it.'
' The position would be the same with regard to a judgment of a civil Court in a subsequent criminal action. In this view of the matter, we are of the opinion, that the trial Magistrate and the High Court rightly did not take the findings of the civil Court into account in determining the guilt of the accused in the criminal case."
' Justice Kaikaus as he then was in Mst. Muni's case (3) held that the result of civil suit is not binding on the criminal Courts and criminal proceeding cannot be stayed. Earlier the Lahore High Court in its full Benc decision Kashyap v. Emperor (4) answer the following reference in the negative :- "When there are concurrent proceedings covering the same ground
(1) A 1 R 1929 P C 99 (2) 1972 SCM R 584
(3) PLD 1956 Lab. 403 (4) AIR 1945-Lah. 23 before a criminal Court and a civil Court, the parties being substantially the same, would the judgment of the civil Court, if obtained first, be admissible in evidence before the criminal Court in proof o disproof of the fact on which the prosecution is based ?"
' Similar view was taken by the Calcutta High Court in AIR 1932 Cal.
293. Thus following the principle enunciated by the Privy Council, the Supreme Court of Pakistan and other superior Courts in this sub-continent, 4t can safely be held that: the civil proceedings pending between the parties before the Judge Family Court regarding maintenance have nothing to do with the present criminal prosecution of Abdul Rashid appellant. Any finding of fact or inference drawn in the civil proceedings will have no relevance before the criminal Court where the guilt or criminality of the accused is to be determined on the evidence produced by the parties before that Court. The judgment by the Judge Family Court in the suit for maintenance of her minor female child filed by Mst. Safia could not be a judgment in rem but judgment in personam. I, therefore, find no force in this contention - on plea.
17. As regards the allegation of disowning the female child by Abd Rashid, appellant, the Supreme Court has already settled this issue Hameeda Begum's case (1) that under the Muhammadan Law the paternity of a child born in lawful wedlock is presumed to be in the husband of the mother without any acknowledgment or affirmation of parentage on his pal and such child follows the status of the father. Reliance in this behalf can be placed upon the following observations of their Lordships :- "Under the Muhammadan Law, as in all civilised systems of law, the child follows the bed (firash), that. Is, the paternity of a child born in lawful wedlock is presumed to be in the husband of the mother with out any acknowledgement or affirmation of parentage on his part an such child follows the status of her father. According to the Sunny schools the presumption of legitimacy is so strong that in cases weber a child is born after six months from the date of marriage and within two years after dissolution of the marital contract, either by the death of the husband or by divorce, a simple denial of paternity on the part of the husband would not take away the status of legitimacy from the child. Of course, presumption based on the bed is subject to the right of disapproval on the part of the husband for want o access. This right has to be exercised in accordance with the custom of the locality either on the day of the child's birth or at the time of purchasing articles necessary in view of its birth or during the period of rejoicing. If the husband is absent, he must disown the child immediately he is informed of its birth.
' The shortest period of gestation, according to all the schools, is months. If, therefore, a child is born within six lunar months of the marriage, no affiliation would take place unless the man acknowledge it to be his issue. In other words, it is the right of the man to legitimate a chid born within this time by acknowledging expressly o impliedly that the conception took place in wedlock.
According the Hanifis, contrary to the Shafi'is, the husband is entitled to claim the child born in wedlock as his, eves if he hid no access to the wife.
(1) PLD 1975 SC 624 ' If the husband wishes to repudiate a child so born, he can only do s by the procedure of lean that is to say, if he swears before the Qadi that the child is illegitimate and fruit of adultery, in which case the Court will pass a decree not only dissolving the marriage but declaring the child to be illegitimate."
' The admitted factual position in the present case is that marriage between Abdul Rashid, appellant and Mst. Safia respondent took place on 4-7-1980, the female child was born on 30-5- 1981 and she was divorced by the appellant on 19-12-1981. He disowned the child in his written statement filed on 8-3-1982.
18. For the foregoing reason this appeal fails and the same is hereby dismissed. The conviction and sentences of Abdul Rashid, appellant are maintained. He is on bail. He shall be taken into custody forthwith to undergo the unexpired period of imprisonment.