' KAMAL MUSTAFA BOKHARY, J.-- Mehmood son of Lal, resident of District Sahiwal with Yousaf, Bahoo and Ahmad, was tried for bringing false allegations of Zina against Mst. Karam Illahi, wife of Mehmood. The Additional Sessions Judge II, Sahiwal, acquitted Yousaf, Bahoo and Ahmad of the charge but convicted Mehmood under section 11 of the Offence of Qazf (Enforcement of Hadd)
Ordinance, 1979 and sentenced him to undergo rigorous imprisonment for one year with whipping numbering ten stripes and to a fine of Rs,1,000 or in default to further suffer rigorous imprisonment for three months, vide his judgment passed on 11-6-1988. Mehmood has filed appeal from the order of his conviction and sentences which shall be disposed of by this judgment.
2. The prosecution case as disclosed in the first information report was that Mst. Karam Ellahi, P.W.
Had married the appellant about one year before 30th October, 1985. The parties fell out and on 3- 2-1985 she filed a suit for dissolution of marriage with the appellant before the Judge, Family Court, Sahiwal. The appellant got registered an F.I.R. No, 59 of 1985 on 6-4-1985 under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station, Harappa. The appellant alleged therein that he and his acquitted co-accused saw her committing Zina with Abdullah son of Farid. After investigation the police came to the conclusion that Mst. Karam Ellahi was innocent and the allegation against her was baseless. Consequently, police got that F.I.R. Cancelled against Mst. Karam Ellahi and under order of the Assistant Superintendent of Police, dated 30-10-1986. F.I.R.
No, 272 of 1985, dated 10-12-1985, Exh.PA. Was registered at the same Police Station Harppa, on the statement of Mst. Karam Ellahi against the appellant under section 7 of the Offence of Qazf (Enforcenment of Hadd) Ordinance, 1979. The Judge, Family Court, dissolved marriage of Mst.
Karam Ellahi with appellant and decreed her suit against the appellant, on 27-6-1985. After investigation the appellant was challenged in Court.
3. At the trial the appellant was charged under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 for imputing false allegation of Zina against Mst. Karam Ellahi, first informant. She appeared as P.W.1 and narrated facts stated in her statement on which first information report was registered. She deposed that the appellant got registered case against her under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for having seen her committing Zina with Abdullah in which his acquitted co-accused were prosecution witnesses. She also stated that after cancellation of that F.I.R. Against her appellant filed a private complaint about same occurrence against her and same Abdullah in which the appellant as well as his acquitted co-accused levelled false allegation of Zina against her but the complaint was also dismissed and she was acquitted. Muhammad Anwar (P.W.2), Head Constable, deposed that he registered F.I.R. Exh.PA. On statement of Mst. Karam Ellahi. Allah Bakhsh (P.W.3) deposed that appellant got registered a case against Mst. Karam Ellahi under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but the F.I.R. Was cancelled after investigation and the accused has levelled false allegation of Zina against Mst. Karam Ellahi and Abdullah. Suleman (P.W.4) also similarly deposed that the appellant got registered a case against Mst. Karam Ellahi and Abdullah in which he leveled false allegation of Zina against them. Dilshad All Khan (P.W.5). S.H.O. Police Station Harappa, deposed ,that after investigation he challenged the appellant in present case in Court.
4. The appellant and his co-accused denied all allegations. Mehmood, appellant, admitted that Mst. Karam Ellahi was his wife and she instituted a suit for dissolution of marriage aginst him. He also admitted it as correct that after cancellation of the F.I.R. He filed private complaint against Mst.
Karam Ellahi in the Court of Chaudhry Muhammad Zafarullah, Additional Sessions Judge, Sahiwal in which he and his co-accused leveled allegation of Zina against her and Abdullah which complaint was ultimately dismissed. He also stated that the Court which decided his private complaint did not give any finding that he had made a false imputation against Mst. Karam Ellahi nor did the 'Court start proceedings against him under the Qazf Ordinance. In his defence the appellant only produced copy of judgment, dated 19-10-1986, of this Court whereby his petition for special leave to appeal against acquittal of Mst. Karam Ellahi and Abdullah under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was dismissed. He also filed copy of judgment of this Court, dated 1-121987, dismissing the revision filed by him and his acquitted co- accused against the order of Additional Sessions Judge, Sahiwal, rejecting their application under section 265-K, Cr.P.C. And refusing to acquit them of the charge under section 7 of Qazf (Enforcement of Hadd) Ordinance, 1979.
5. It was argued before us that ocular evidence in the testimony of Mst. Karam Ellahi and of Allah Bux and Suleman who were closely related to Abdullah was unworthy of reliance. It was also contended that allegations of Zina by the appellant against Mst. Karam Ellahi and Abdullah were made in bona fide manner before persons in authority and by appellant as husband against his wife, Mst. Karam Ellahi, due to which no offence of Qazf can be said to be made out. He referred to Muhammad Bashir v. The State PLD 1985 FSC 384 and Mst. Nek Bakht v. The State PLD 1986 FSC 174.
6. On the report of Mst. Karam Ellahi, present case against the appellant was registered under secion 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and the trial Court convicted and sentenced him under section 11 of the said Ordinance as aforementioned. According to Mst. Karam Ellahi the allegation of Zina against her was made by the appellant in the F.I.R.
Registered on 6-4-1985. It is in evidence that she was wife of the appellant when the appellant allegedly made allegation of Zina against her. The conviction of appellant is based on his failure to produce four eye-witnesses in proof of his allegation of Zina against Mst. Karam Ellahi. According to Surah Noor verses 6 and 7 when a charge is made by spouses who have no evidence to support it except their own solitary evidence can be received if they bear witness four times on oath by Allah that they are solemnly telling the truth and the said oath should be that they solemnly invoke the curse of Allah on themselves if they tell a lie. In the circumstances the appellant being husband was not liable to be convicted of the offence of Qazf for having failed to produce four witnesses in support of the allegation of Zina made by him against his wife. His conviction cannot be upheld on that ground alone. This Court held the same view in Haji Bakhtiar Said Muhammad v. Dure- Shahwar and another PLD 1986 FSC 186.
7. The allegation of Zina by the appellant was made in the first information report to the police.
After investigation the police did not challan Mst. Karam Ellahi and got that F.I.R. Against her cancelled without filing challan in Court. The matter did not reach Court and allegation having been made before person in authority the case of the appellant was covered by Second Exception to section 3 of the said Ordinance while clause (a) of that exception was not attracted because the case against Mst. Karam Ellahi did not reach the Court for trial.
8. In the F.I.R. Mst. Karam Ellahi complained that the appellant had made allegation of Zina against her during the subsistence of their marriage and police got that F.I.R. Cancelled. However, at the trial she also stated that subsequent to the cancellation of that F.I.R. Appellant filed a private complaint for the same allegation which was also dismissed because he failed to prove the allegation of Zina against her. This was an improvement. The police had not challenged the appellant for allegation of Zina made in the private complainant of appellant. No copy of the complaint was placed on record. The allegation of Zina in the private complaint was stated to be of the period when relationship of spouses existed between the parties. On the evidence we consider it unsafe to maintain conviction of the appellant.
9. For the aforementioned reasons the appeal is allowed, conviction and sentences of the appellant are set aside. The appellant is on bail. His bail bonds shall stand discharged.