AFTAB HUSSAIN, C. J.-This order will dispose of a reference to a larger Bench in Cr. Appeal No, 73/I of 1982, Cr. Appeal No, 74/1 of 1982 and Cr. Appeal No, 106/1 of 192 whether the judgment of two Judges in Afadat v. State (1), that in case of Lian by the husband and the wife both !A of them are liable to acquittal (the husband on the charge of Qazf and the wife on the charge of Zina) and the wile could no more be punished even in Tazir, was correct. Reference dated 30th February, 1983 was necessitated because the learned counsel for the State argued before the Referring Bench that the wife can at most be acquitted of the charge of Hadd but she would still be liable to Tazir in view of the mandatory provisions of Ordinance VIII of 1979 which in its section 10 provides that where inter alia the evidence necessary for Hadd punishment is not forthcoming and there is sufficient evidence for punishing the accused in Tazir, he shall be so punished.
2. In the reference it is stated that this was a decision of the Court but we are of the view that it cannot be called decision of the Court but can only be given the status of the judgment of two Judges out of the Bench of four Judges since Karimullah Durrani, J. And Zahoorul Hach J. Favoured the above finding while Pir Muhammad Karam Shah AI-Azhari, J. Dissented from it andMaulana Ghulam Ali, J. Reserved his opinion on this question which according to him did not arise as the appellants were entitled to acquittal on merits. In view of the fact that two out of four Judges did not agree with this finding, the proper course would have been to refer the matter to a fifth Judge but this would have been necessary if the appeal could not be decided without this point being adjudicated upon.
3. In the case of Afadat, Karimullah Durrani, J. Relied upon the Shafei view on the interpretation of Q.
24 : 6-10 that in case of Lian by the wife not only the marriage is dissolved but the wife is also entitled to acquittal and Hadd sentence cannot be imposed upon her.
4. Pir Muhammad Karam Shah, J. However, relied upon the Hanafi view which is also reproduced by A llama Aloosi in Tafseer Roohul Maani that the words {{URDU TEXT}} mean that the punishment of imprisonment {{URDU TEXT}} will be averted from her. The Hanafi view. Therefore, is that it does not mean the .Aversion of the Hadd punish-ment but only of Habs or imprisonment
5. Before proceeding further it may be clarified that according to Shafei view if the husband takes oath as provided in the above verses, the sentence of Qazf is averted from him and if the wife refuses to take oaths of Lian, she is liable to be punished in Hadd. The Hanafi opinion, however, is that in case of refusal of the wife to take the prescribed oaths the Hadd of Qazf i5 certainly averted from the husband but the wife cannot be subjected to Hadd punishment because in the absence of evidence or confession the oath of the husband may create only a doubt that she has committed the offence of Zina and as such it is not sufficient evidence for Hadd. In case of refusal to take oaths she will be imprisoned for an
(1) PLD 1982 F SC 52 indefinite period till she agrees to take oaths or she confesses the commission of Zina.
6. One important point which is to be considered is that section 14 of the Qazf Ordinance, 1979 was drafted on the basis of the Hanafi opinion that in case of refusal to take oaths the wife shall be imprisoned unless she agrees to go through the procedure of Lian or accept the husband's accusation as true. For a better appreciation of this point section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 is reproduced below : "14.-(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 Lian 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) the 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), be 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".
7. Subsection 3(b) incorporates the Hanafi Ijtihad about imprisonment (which is Tazir) In these circumstances we wonder whether any digression from the Hanafi view in matter of interpretation of the verses about Lian could be possible and whether the adverse opinion of Imam Shafei could be preferred.
8. It may be stated that there is a difference of opinion on the point whether Tazir sentence can be averted on account of the Injunction {{URDU TEXT}}". The Hanafi view has already been repro duck that does not mean the Hadd punishment. But Ibn-e-Qudama is very specific on the point that from the language of the Qur'an it appears that Tazir punishment is not averted. Unfortunately our learned brother Karimullah Durrani, J. Did not refer to that opinion given in AlMughni, Vol. VII, page 404 though he referred to that book as well as the above page. From that page he merely made a reference to the opinion of Imam Shafei that if the severer punishment of Hadd is averted there is no reason why the punishment of Tazir may not be averted. In this connection reference may be made to what Ibn-e-Qudama said on this point at two different places and which clinches the matter. At page 404 he says that when the husband takes the prescribed oaths they are substitute for evidence for averting the Hadd for false accusation because the Holy Prophet had said (to Hilal lbn-e-Umayya) `either bring evidence or Hadd will be administered on your back'. He then referred to the cases in which the Qazf is in respect of a Kitabiya (non-Muslim female), a slave girl or a lunatic girl or a child, but in each such case Tazir shall have to be administered (because according to the general view the Hadd is given when the Qazf is against a Muhsana). In such a case the opinion of Ibn-e- Qudama is that the Tazir is not averted by Lian because Lian either nullifies that the child is of the husband or it averts Hadd only and Tazir is not included in either of them but the view of Imam Shafei, as stated in the judgment of Karimullah Durrani, J. Is that it averts all punishments. It appears, therefore, that there is no unanimity on the point that the word {{URDU TEXT}}' in the above verse includes Tazir sentence also. In reply to the view of Imam Shafei, Ibn-e-Qudama says "If a provision is introduced for averting a Hadd, it does not avert the lesser punishment, for example, if somebody accuses a minor girl of Zina who cannot commit intercourse, he can only be punished with Tazir by being abused or by being subjected to torture and this punishment is not averted by Lian.
9. The principle to which Ibn-e-Qudama has drawn attention a page 407 is also relevant for arriving at the same conclusion. He write that if a person accuses his wife of adultery and he has evidence about it, it is his option either to proceed by Lian or produce the evidence because each of them form an independent procedure in the same manner as when in a case of debt a person has two male witnesses or one male and two famale witnesses, he can produce either of the two.
One of the function of Lian is to nullify the lineage and this object cannot be achieved b proving the charge of Zina by the production of evidence in support of it. Similarly the imposition of Hadd cannot be achieved by Lian. It is th husband's option to follow the procedure of Lian for nullification o lineage of the child and to produce evidence in support of the charge o Zina. He can resort to both the courses.
10. From this opinion it is clear that in such a case Lian cannot be effective for averting the punishment of Zina if there is independent evidence to prove the charge. By a parity of reasoning it would follow that if the Lian is for averting the Hadd and there is evidence for a Tazir sentence, the Tazir cannot be averted in spite of Lian.
11. There is no difference of view on the question that where the evidence is insufficient for imposition of Hadd punishment but is sufficient for infliction of fazir sentence, the same can be awarded. It is related from Abduz Zuha that once three persons gave evidence before Hazrat All against a person accused of adultery. The fourth witness said that he had only seen the accused and the woman covered by the same cloth and if this was adultery then it was. Hazrat Ali whipped the three witnesses in Qazf and punished the accused man and woman in Tazir (Kanzul Ummal, Vol. V, page 458). The jurists are, therefore, of the opinion that if the conditions for execution of a Hadd sentence are not fulfilled the offender will not be acquitted totally in cases of theft, adultery and Qazf, and can be subjected to Tazir sentence in case there be evidence in support thereof (Badai-us-Sanai, Vol. VII, page 64). The Hudood Laws promulgated on the 6th of February, 1979 have been drafted keeping this view in mind. The law provides for offence liable to Hadd and alternatively to the same offence being liable to Tazir. The object is that where the conditions required for proof of an offence punishable to Hadd are not fulfilled and there is evidence of a lesser degree, the accused shall not go scot free and shall be liable to Tazir. The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 provides on the same principle in section 5 for the Offence of Zina liable to Hadd and in section 6 for the offence of Zina-bil-Jabr liable to Hadd, but section 10 provides infer alia that whoever commits Zina or Zina-bil-Jabr which is not liable to Hadd or for which proof in either of the forms mentioned in section 8 is not available, shall be liable to Tazir.
12. It will be interesting to note that the offence of Zina or Zina-bilJabr liable to Hadd is proved either by confession or by the evidence o four witnesses whose qualifications are laid down in section 8(b). Section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 makes the wife liable to Hadd punishment only when after undergoing through the procedure-of Lian she accepts the husband's accusation as true which in fact amounts to a confession.. In case the woman refuses to take oaths there is no provision that she will be awarded Hadd punishment. On the other hand, as already stated, the provision is that she will be kept in prison until she agrees to take oath or accepts the husband's accusation a true. Similarly there is no provision in section 14 that in case she takes the oath ; she is liable to acquittal. In these circumstances When section 14 is completely silt nt on that point and subsection (4) thereof refers to the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for awardin the Hadd punishment it would follow that if the Hadd punishment cannot be given, the matter will be assumed to be covered by section 10 of that Ordinance and she will be liable to Tazir if sufficient evidence is available.
13. Our learned brother Karimullah Durrani, J, while holding th wife liable to acquittal and acting upon the opinion of Imam Shafei in that respect has proceeded on the assumption that there is a vacuum in sec tion 14 which he could fill up by reference to the injunction in the Holy Qur'an{{URDU TEXT}}. But we find no such vacuum since whil dealing with section 14 of the Qazf Ordinance the Judge is bound for the purpose of awarding the sentence of Hadd to take into consideration and act upon the provision of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It is a clear indication of the fact that in all other matter too this Ordinance shall be applicable and the question of acquittal would, therefore, be subject to the provision of section 10 of that Ordinance.
14. We are, therefore, of the view that in case the Lian proceeding are complete and the wife also takes necessary oaths, she cannot be acquitted forthwith and shall be liable to Tazir in case that offence I proved by evidence. The reference is duly answered. These three appeal on merits shall be heard and decided by a Single or Division Bench as th case may be.
' Per Ali HUSSAIN QAZILBASH, J (contra).-This reference has been answered by the majority of the learned Judges of this Court and was placed before me for my approval and signature. I have carefully gone through the judgment but with due respect to my learned brothers I do not find myself in agreement with the findings arrived at.
The reasons necessitating the reference have been given by the Hon'ble Chief Justice in his leading judgment and I have nothing to add. The question, however, whether the decision of this Court in the case of Afaaiat etc. v. The State (1) was by a majority or otherwise. I would with respect, without dialating in detail on the subject, submit that in all fairness the said decision was by the majority of the Judges of this Court and should have been treated as such.
' The sole matter before the Court is whether in the case of Lian by the husband and the wife, both are liable to acquittal, the husband of the charge of Qazf and the wife of the charge of Zina, and that the wife could no more be punished even in Tazir. This proposition has been dealt with in a most elaborate manner in Surah Noor, Ayats 6 to 10 Q. XXIV 6 to 0) of the Holy Qur'an and the Tradition of the Holy Prophet (AS) reported by Ibn-e-Abbas reported in Sunnah Abu Daud, Vol. II, pages 199 to 201.
' Before, however, adverting to the Qur'anic Injunctions and the Sunnah of the Holy Prophet (AS) a reference to Ayat No, 4 of Surah Noor is not only material but very relevant. HOLY QURAN {{URDU TEXT}} 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 Even after : for such men Are wicked transgressors ;- This is known as a punishment for Qazf.
' As the tradition goes, after the revelation of the abovequoted Ayat (XXIV : 4) people were confronted with a problem that in case a husband finds hi: wife committing adultery with another and is no way able to produce evidence in the manner laid down by the Holy Qur'an (XXIV:4) excepting his own solitary evidence, how should he deal with his unchaste wife. One of such persons was Hilal bin Ummaya who was confronted exactly with a similar situation. It is reported by Ahdullah Ibn-e-Abbas in Sunnan Abu Daud, Vol. H, pp. 199 to 201 {{URDU TEXT}} ' That Hilal Bin Ummaya did not participate in the battle of Tabook and when at night retuned home from his fields he saw a man with his wife. He did not give any indication to his wife but the next morning appeared before the Holy Prophet (AS) and deposed about the above occurrence. The Holy Prophet (AS) on hearing the episode got perturbed and this was very much felt by Hilal Bin Ummaya. In that meantime, however, the process of revelation of Ayats 6 to 10 of Surah Noor started which laid down (The Qur'anic Ayats 6 to 10 are inserted by me to facilitate reference).
HOLY QURAN 24:6 {{URDU TEXT}} 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 Bearwitness four times (With an oath by Allah That they are solemnly Telling the truth.
24:7 {{URDU TEXT}} And the fifth (oath)
(Should be) that they solemenly Invoke the curse of Allah On themselves if they Tell a lie.
24:8 {{URDU TEXT}} 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.
24:9 {{URDU TEXT}} And the fifth (oath)
Should be that she solemnly Invokes the wrath of Allah On herself if (her accuser). Is telling the truth.
24:10 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).
' After the conclusion of the revelation of the above Ayats the Holy Prophet (AS) felt relieved and told Hilal that Allah has revealed a way out. The Holy Prophet then directed Hilal to produce his wife, and in the presence of both the Holy Prophet recited the above verses and reprimanded both of them that the punishment of Allah is more severe than the worldly punishment. Hilal said whatever he has narrated is the whole truth. His wife, however, refuted the allegations and said before the Holy Prophet (AS) that Hilal was lying. The Holy Prophet then directed his companions to initiate Lian proceedings as laid down in the Ayats referred to above. Hilal called Allah four times as his witness and solemnly affirmed the facts and on the 5th time he invoked the curse of Allah upon him if he was lying. When his wife was confronted with the above situation she kept silent for some time, but subsequently said that she did not want to dishonour her tribe and took the four testimonials refuting the imputation of Zina levelled against her by her husband and on the 5th time invoked the curse of Allah upon her if her husband was telling the truth. At the conclusion of the above proceedings the Holy Prophet (AS) dissolved their marriage and ordered that the child from the Hilal's wife would not be surnamed after Hilal. It was further ordered that no imputation of Zina would be levelled against the woman and her son. It was further decreed by the Holy Prophet
(AS) that whosoever levelled the accusation of Zina against the woman and her son would be liable to punishment under Hadd. The tradition further goes that it is not incumbent upon the husband to provide food and shelter to his ex-wife because they have been separated without proper divorce or death and the Holy Prophet (AS) ordered that if the baby on birth is found having brown hairs small hips big stomach and thin shins, should be taken to be the offspring of Hilal but if on birth has wheatish complexion, curly hairs, fatty shins and big hips shall be the offspring of the person who is alleged to have committed adultery with the wife of Hilal. The baby on birth had the 'latter genetic characteristics, was ascribed to the person who had allegedly committed adultery with the wife of Hilal and the Holy Prophet said that if Lian had not taken place he would have punished the woman." {{URDU TEXT}}After carefully examining the injunctions of the Holy Qur'an (XXIV: 6 to 10) and the tradition of the Holy Prophet, (AS) which I have quoted in extenso, I have come to an irresistiole conclusion that there is no raiso d'etre for convicting and sentencing a woman after Lian proceedings eve under Tazir.{{URDU TEXE}} ' The lian proceedings between the spouses are instituted when the husband, excepting his own evidence, fails to produce four witnesses to support his allegation of the commission of adultery by his wife. The production of fou; witnesses is thus substituted by taking oaths and the husband is required according to the injunctions of the Holy Qur'an as laid down in (XXIV: 6) to bear witness four times by Allah that he was telling the truth and on the 5th, according to verse 7 to invoke the curse of Allah if he was lying. When the wife is confronted with the exercise undergone by her husband, if she accepts the accusation she will be punished for adultery under the Hadd. In case, however, she refutes and denies the allegations of adultery in the manner done by her husband I e.
She bears, witness by Allah four times (verse 8) that the allegations against her are false and on the 5th time (verse 9) invokes the curse of Allah upon herself if her husband was telling the truth, then the allegation of adultery falls to the ground and she is absolved of the charge and the punishment. This is so, because obviously the oaths of accusation taken by the husband and the oaths of denial by the wife are destructive to each other, and it i. e. Lian proceedings completely demolish the very edifice on which the husband had raised the foundation of allegation against his wife. Though one of them may be lying, but since no evidence regarding the accusation as to the commission of the crime existed, therefore, the conviction of a woman under the Tazir would be uncalled for. I may venture to state here that the Lian proceedings are taken only in those cases where they husband has no evidence, I repeat no evidence direct or otherwise excepting, his own, and the Holy Qur'an is quite clear on the subject when it says: {{URDU TEXT}} "And have (in support) no evidence but their own".
' When Hilal Bin Ummaya came to the Holy Prophet and accused his wife of adultery the Prophet said :- {{URDU TEXT}} "Bring proof or Hadd will be implemented on your back".
' According to Ibn-e-Qayyim in his Book Alamul Muwaqqiin, Volume 1, page 90 W JI means any kind of evidence which proves the claim and it includes personal witness, documentary proof, circumstantial evidence etc. In cases however, where the evidence of the husband accusing his wife of adultery is supported and corroborated by other circumstantial evidence, in those cases in my humble view, Lian proceedings would not be initiated and the wife would be prosecuted for adultery under Tazir after taking into consideration the material brought against her by her husband and convicted as such. The view expressed by me above is supported on all fours by the case of Hilal referred to above. - ' From the language of the tradition cited above one can say that Hilal's wife was guilty of the offence of adultery because in-the first instance she was hesitant to take the oaths but subsequently- she did so, not to save her own honour and reputation but the honour of her tribe and secondly she was pregnant and the Holy Prophet had ordered that after the birth of the child it should be attributed to a person whom he resembled. Yet after the conclusion of the Lian proceedings the Holy Prophet only dissolved the marriage and no punishment, whatsoever was imposed or inflicted upon her. It may be borne in mind that the dissolution of marriage was not automatic, it was dissolved because it is against human nature that the parties would live together happily after such an incident. On the birth. Of the child since he resembled the person who .Was alleged to have committed adultery with the wife of Hilal he was ascribed to him and the Holy Prophet said had evidence been not taken earlier (XXIV 6 to 9) he would have punished and taught a lesson to this woman.
' The operative portion of the Tradition where it has been laid down :- {{URDU TEXT}} "The child which this woman is carrying on birth would not be attributed to his father but no imputation of Zina be levelled against the woman and her son and whosoever accused the woman and her son of Zina would be liable to be punished under Hadd. The tradition further goes that it is not incumbent upon the husband to provide food and shelter to his ex-wife because they have been separated without proper divorce or death and the Holy Prophet (AS) ordered that if the baby on birth is found having brown hairs, small hips big stomach and thin shins, should be taken to be the offspring of Hilal but if on birth has wheatish complexion, curly hairs, fatty shins and big hips shall be the offspring of the person who is alleged to have committed adultery with wife off Hilal. The baby on birth had the later characteristics, was ascribed to the person who had allegedly committed adultery with the wife of Hilal and the Holy Prophet said that if Lian had not taken place he would have punished the woman."
' The above dictum by the Holy Prophet has clinched the matter and no ambiguity whatsoever has been left. After going through the Lian proceedings, there being no evidence direct or otherwise against the wife of Hilal, the Holy Prophet (AS) rightly ordered that no imputation of Zina be levelled against the woman and her son and whoever did so would render himself for punishment under Hadd. Though subsequently the birth of an illegitimate child to the wife of Hilal did provide and furnish a solid proof of adultery against her, but since the Lian proceedings had taken place where the wife of Hilal had refuted the allegations of Zina, no punishment was inflicted upon her by the Holy Prophet. This is a law laid down by the Holy Prophet (AS) and we have to accept it without any demur, therefore, the opinions of some of the Jurists and commentators to the contrary have to be ignored.
The sum total of the above in my humble opinion is that once I the Lian proceedings the wife refutes the allegations of Zina against her in the manner laid down by the Holy Quran she is completely absolved of the guilt and therefore, cannot be punished under Tazir, subsequen availability and production of evidence notwithstanding.
' I have not been able to lay my hands upon any instance, neither quoted by Pir Karam Shah, J. In the case reported in PLD 1982 F SC 52 or for that in the present majority judgment nor cited by the learned counsel at the bar that during the lifetime the Holy Prophet or for that matter during the reign of the Khulafa-l-Rashidin any woman had been punished for such accusation under Tazir after the Lian proceedings. The reason is quite obvious because after the Lian proceedings the accusation against the wife falls flat on the ground.
' I have also gone through section 14 of the Qazf Ordinance which has been quoted in full in the leading judgment. I did not find any shortcoming or lacuna in the said provision. It deals with the question of Lian only. If in the Lian proceedings the wife refutes the allegations of unchastity in the manner laid down in the Holy Qur'an it takes her off the pale of accusation of Zina and the function of the Court is only to pronounce divorce between the spouses and not beyond that. The question, therefore, that she will then be proceeded under section 10 of Ordinance VII of 1979 and punished accordingly does not arise as no offence ha been proved to have been committed by her.
' The upshot of the above discussion is that in the case of Cr. Appeal No, 106/1 Ali Hussain v. Mst.
Khurshid Begi.m if the Lian proceedings between the parties have not been completed and evidence against the adulteress is available, the case shall be heard and decided on merits. As far Cr. Appeal No, 73/1 of 1982 Mst. Nek Bakhat v. The State, the Lian proceedings in this case have been completed, the marriage has been dissolved by this Court vide order dated 8-2-1983. 1 acquit Mst.
Nek Bakhat of the accusation and set aside her conviction and sentence. She should be released forthwith if not required in any other case. As a corollary of my order of absolving Mst. Nek Bakhat of the offence of adultery, I also accept the appeal of Muhammad Rafiq in Criminal Appeal No, 74/1 of 1982, set aside his conviction and sentence and order that he should be released forthwith if not required in any other case.