' FAKHRUDDIN H. SHAIKH, J.-Following two questions, have been referred to this Bench for consideration, namely :- (i)Whether section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the Qazf Ordinance) shall be applicable to the case of spouses ? And
(ii) Whether section 7 and section 14 or any of them is repugnant to verses of Sura XXIV (Nur).
2. It would be proper to state briefly the circumstances which have necessitated the reference. Haji Bakhtiar Said Muhammad, who has filed the above criminal revision petition was the husband of Mst. Dur-eShahwar, respondent. They lived as husband and wife for about seven years. On 25.4- 1983 he divorced Msr. Dur-e-Shahwar by divorce deed. In this deed he has stated that he had divorced Mst. Dur-e-Shahwar on account of her unchaste character. He also stated that three children, who have been born to Mst. Dur-e-Shahwar during the wed-lock, were also the result of adultery and were not from the loins of the petitioner.
3. On receiving the divorce deed Mst. Dur-e-Shahwar filed a complaint under section 7 of Qazf Ordinance, which was entertained by Additional Sessions Judge-Ill. Sahiwal. The learned Judge held preliminary enquiry and passed an order, dated 26-8-1984 that a prima facie case of offence under section 7 of Qazf Ordinance was made out against the petitioner. The learned Judge further directed that bailable warrants of arrest may be issued against the petitioner.
4. The petitioner has challenged the above order regarding issuance of warrant in the above revision petition. It has been contended inter alia that the learned Additional Sessions Judge has entertained the complaint and taken cognizance of the offence in contravention of the injunctions of Islam as contained in the Sura XXIV (Nur). While considering the above contention during preliminary hearing, the learned Chief Justice referred the above questions to this Bench.
5. Reference to the relevant verses has not been made in the revision 10 which are petition, but the verses relating to Qazf and Lian are 4 to reproduced here under :- {{ARBI TEXT}}
4. And those who launch A charge against chaste women. And produce not four witnesses, (To support their allegation), Flog them with eighty stripes; And reject their evidence. Ever after: for such men. Are wicked transgressors :- {{ARBI TEXT}}
5. Unless they repent thereafter And mend (their conduct): For Allah is Oft-Forgiving, Most Merciful. {{URDU TEXT}}
6. And for those who launch. A charge against their spouses, And have (in support) No evidence but their own, Their solitary evidence (Can be received) if they Bear witness four times (With an oath) by Allah. That they are solemnly Telling the truth. {{ARBI TEXT}}
7. And the fifth (oath) (Should be) that they solemnly. Invoke the curse of Allah On themselves if they Tell a lie. {{ARBI TEXT}}
8. But it would avert The punishment from the wife, If she bears witness Four times (with an oath) By Allah, that (her husband) Is telling a lie {{ARBI TEXT}}
9. And the fifth (oath) should be that she solemnly Invokes the wrath of Allah On herself if (her accuser) Is telling the truth. {{ARBI TEXT}}
10. If it were not For Allah's grace and mercy On you. And that Allah Is Oft-Returning, Full of Wisdom, (Ye would be ruined indeed).
Qazf has been defined in section 3 of the Qazf Ordinance. The relevant sections, the vires of which we have been called upon to determine vis-a-vis the above verses. Are sections 7 and 14. It will be advantageous to reproduce seetions 3, 7 and 14 which read as under :- "S.
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."
Explanation 1.-It may amount to Qazf to impute Zina to a deceased person, if the imputation would harm the reputation, or hurt the feelings, of that person if living, and is hurtful to the feelings of his family or other near relatives. Explanation 2. -An imputztion in the form of an alternative or expressed ironically, may amount to Qazf."
S.
7. (1) Whoever commits Qazf liable to Hadd shall be punished with whipping numbering eighty stripes.
(2) After a person has been convicted for the offence of Qazf liable to Hadd, his evidence shall not be admissible in any Court of law.
(3) A punishment awarded under subsection (1) shall not be executed until it has been confirmed by the Court to which an appeal from the Court awarding the punishment lies; ant, until the punishment is confirmed and executed, the convict shall, subject to the provide of the Code of Criminal Procedure, 1898, relating to the grant of bail or suspension of sentence be dealt with in the same manner as if sentenced to simple imprisonment."
S.
14. Lian.-(1) When a husband accuses "before a Court" his wife who is Mubsan within the meaning of section 5 of Zina and the wife does not accept the accusation as true, the following procedure of Lean 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 a liar in my accusation of Zina against my wife (name of wife)" and
(b) wife shall, in reply to the husband's statement made in accordance with clause (a), say upon oath before the Court : "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.
(3) Where the husband or the wife refuses to go through the procedure specified in subsection (1), he or, as the case may be, she shall be imprisoned until-
(a) in the case of the husband, he has agreed to go through the aforesaid procedure ; or
(b) in the case of the wife, she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true
(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 Offence of Zina (Enforcement of Hudood)
Ordinance, 1979."
' We have had the advantage of hearing the views of eminent Juris-consults namely Mufti Muhammad Hussain Naeemi and Maulana Salauddin Yousaf on the question under consideration.
We had also received views in writing of MaulanaMuhammad Malik Kandhalvi through Maulana Musharaf All Thanvi. Besides the views of the above Juris-consults, we were also addressed by Mr. Saeed A. Shaikh, Advocate-General Sind, Assistant Advocate-General, N.-W. F. P., Mr. Riazul Hassan Gillani, Deputy Attorney-General Lahore, and Mr. Nusratullah who appeared for . Mr. Khalil Ramdey, Additional Advocate-General Punjab, Sh. Shaukat Ali, Advocate for the petitioner had also presented his views.
6. If we read section 7 of Qazf Ordinance in juxtaposition with verse 4 above, it would appear that section 7 is almost restatement of verse 4. Hence there can be no doubt about the legality and validity of on of Islam. Section 7 vis-a-vis the Injunction the question is whether this section will also apply to a case involving accusation of 'Zina' levelled by a husband against his wife. This question has been resolved by verse 6 quoted above, which appears to be in form of exception to section 7.
Verse 6 lays down that if the accusation has been made by a husband against his wife, his case shall not be covered by verse 4, but he shall have to undergo the procedure, contemplated by verses 6 to 9, which is technically known as 'Liao'. A bare reading of the relevant verses would accuses his wife make it clear that a husband who accussess of `Zina", but is unable undergo the produce tour witneses to support the allegation, shall have to dergo the procedure of Lian, if he wanted to avoid prosecution for Qazf. While commenting on verses 4-6 above, Abdulla Yousaf Ali in his commentary on the Holy Qur'an at page 897 writes as under :- "2960. The case of married persons is different from that of out- siders. If one of them accuses the other of unchastity, the accusation party reflects on the accuser as well. Moreover_ the ILI which unites married people, even where differences supervene, is sure to act as a steadying influence against the concoction of false charges of unchastity, particularly where divorce is allowed (as in Islam) for reasons other than unchastity. Suppose a husband catches a wife in adultery. In the nature of things four witnesses -or even human nature that one outside witness-would be impossible. Yet after such an experience it is against h he can live a normal married life. Toe matter is then left to the honour of the two spouses. If the husband can solemnly swear four times to the fact, - and in addition invoke a curse on himself if he lies, that is prima facie evidence of the wife's guilt. But if the wife swears v curse similarly four times and similarly invokes a cue on herself, she is in law acquitted of the guilt If she does not take this step, the charge is held proved and the punishment follows. In either case the marriage is dissolved, as it is against human nature that the parties can live together happily after such an incident."
It may be stated that verse 4 was revealed first in which there was n references to a husband making allegation of `Zina' against his wife. It B appears that certain incidents happened during the life of Holy Prophet (PBUH) whereupon the following verses namely; 6, 7 and 9 were revealed. These incidents have been referred to by Maulana Abut A`la Maududi in his Tafheem-ul-Qur'an, Vol. III at p. 356, while stating the circumstances (Shan-e-Nazool) in which the verses 6-9 were revealed: The Maulana comments :- {{URDU TEXT}}
7. It is clear from the commentary that section 7 of Qazf Ordinance, which embodies the Qur'anic Law laid down in verse 4 of Sura Noor, is not applicable to a husband accuting his wife of 'Zina' during subsisrenc of marital tie. If he has four witnesses to prove the allegation, question of Qazf shall not arise. If he has no witness, except himself, and he wants to avoid prosecution for Qazf, verses 6 and 7 shall apply. Section 14 of the Qazf Ordinance embodies the Qur'anic Injunctions laid down in verses 6 and 7.
8. It must be noted that before attracting the provisions of section 14 of Qazf Ordinance, two conditions must be satisfied. First, the accu sation is made by the husband during subsistence of the marriage, an second, the husband has no witness, except himself, to prove the allegation. Both these conditions are clearly deducible from verse 6 l he second condition is not specifically mentioned in section 14 but the fact that clause (a) of the section provides for oath to be taken four time suggests that the husband is unable to produce four witnesses and that the four times oath is taken as substitute for evidence of four witnesse necessary to prove 'Zina' liable to Hadd. We shall therefore advise that the law makers take steps to amend section 14 by inserting the words "and is unable to produce 'witnesses except himself to prove the accusation" after the word `Zina'.
However, even in the absence of these, words, section 14 shall be read as if the second condition referred to above is implied therein.
9. If the husband divorces his wife on the allegation of unchastity, the question of applicability of sections 7 and 14 will depend upon the fact whether the utterance or act constituting. Qazf preceded or followed the 'Talaq'. This is a question of fact and shall have to be decided in each case according to facts and circumstances of that case.
10. An objection has been raised that the words 'before the Court' appearing under section 14 of Qazf Ordinance are repsgnant to the relevant verses of the Holy Quran. There is no substance in this contention. Lian proceedings are always to be held before the Qazi. Take the instance of Hilal Bin Umeyya referred to by Maulana Abul-A'la Mauduoi in the note quoted above. The allegation by Hilal had been made before the Holy Prophet (PBUH) and it was the Holy Prophet (PBUH) who had asked the accuser and the accused to undergo the exercise of `Lint. The words {{URDU TEXT}} (witnesses) and {{URDU TEXT}} (their solitary evidence can be received) imply reference to a Court, because, evidence can be received only by a Court. T e question of receiving evidence shall not arise unless the accusation is made or brought before a Court. Unless the accusation is made before the Court or even if made outside the Court and is brought before the Court, Lian proceedings cannot be commenced. The procedure of taking oath, shall also take place before a Court and the question of the Lian shall arise only when accusation is made or brougnt before the Court The result of Lian dissolution of marriage, and this also takes place when the Court passes a decree to that effect. It would, therefore. Follow that the words 'before a Court' in section 14 are not repugnant to verse 6. On the contrary omission of these words from the section shall render the section unintelligible and rather inconsistent with verse 6. Consequently we do not feel that the words 'before a Court, are in any way repugnant to the relevant verses of the Holy Qur'an.
11. All the learned Juris-consults as well as the counsel, who appear-i ed on behalf of the Central and Provincial Governments agreed that none of the provisions of section 7 or 14 are repugnant to the Injunctions laid down in this regard in verses 4 to 9 of Sura XXIV (Nur). We agree with the learned Juris-consults and the learned counsel for the Provincial and Central Governments and answer the two questions as under:- Question No, 1.-Provision of section 7 of Qazf Ordinance shall not apply to a case involving accusation by spouses of Zina against eachll other.
Question No, 2.-Sections 7 and 14 of the Qazf Ordinance are no repugnant partly or wholly to the Injunctions laid down in th relevant Suras quoted hereinabove.
' We have not been called upon to decide the question whether a wife, against whom offence of Zina has been proved in a complaint of her husband, shall be absolved from the punishment of Zina, after she has undergone the exercise of Lian. This question has already been dealt. With by a Full Bench of this Court consisting of five Judges in Mst. Nek Bakht v. State (1). Criminal Appeal No, 73/I of 1982, Criminal Appeal No, 74/I of 1982 and Criminal Appeal No, 106/I of 1982, decided on 21st of December, 1983. The criminal revision application No, 31/I of 1984 filed by Haji Bakhtiar Said Muhammad shall now be fixed before a Bench for disposal in the regular course.
(1) PLD 1986 F SC 174