1. The facts leading to the filing of the present application under section 561-A, Cr.P.C. Seeking quashment of proceedings in a criminal case initiated on the basis of a private complaint pending in the Court of VIth Additional Sessions Judge, Karachi (South) briefly stated are as follows:-- Mst. Shahnaz Ali respondent No.2 herein is the landlady of a premises situated in Sindhi Muslim Cooperative Housing Society, Karachi while applicants Mushtaq Ahmad and Fawad Mushtaq reside on the ground floor of their premises as her tenants.
2. Shahnaz Ali the respondent No.2 herein had initiated proceedings for ejectment of her tenant before the Rent Controller, which according to her infuriated the applicants who made certain accusation against her. This necessitated filing of a complaint in the Court of S.D.M. Saddar Karachi. Applicant Mushtaq Ahmed addressed a communication to that Court wherein .He made the following accusation against her:-- "My landlady, Mst. Shahnaz Ali according to my observation and information cannot be described to be a person of good repute. The unfortunate part is that her daughter Nazish Ali, also appears to be following the footsteps of her mother.
3. As mentioned above I belong to a respectable family and live on the ground floor of the above premises with my family members including including daughter.
4. Owing to my landlady and her friends/associates being frequented by men of questionable character, I suggested to her to kindly refrain from such activities not only detrimental and offensive to my family-but also to the vicinity. Not only did she decline my this request, but unleashed against me and my family members a complaint intended to cause me harm, ill- repute, harassm ent and intimidation.
5. Sir, the list of afflications is more than lengthy but I will advert your attention to only the undernoted:-- (1)They spared no attempt to find opportune moments to hurl at us the most abusive, foul and filthy language.
6. (2)They embarked upon an unending process of threatening us.
7. (3)They have ensured that the water supply to our ground floor premises is cut of from time to time.
8. (4)They carried on with all kinds of obscene activities and thereby, on the whole, causing public nuisance.
9. (5)They have constructed (on the roof), quite illegally, a factory which has made the premises open to public thoroughfare and have, thus, skilfully shattered the peace of the demised premises.
10. I now solicit you to kindly immediately take such measures and steps which you deem fit and proper and in accordance with the law."
11. Ultimately she filed a complaint under section 7 of the Offence of Qazf (Enforcement of Hadd)
12. Ordinance, 1979 read with sections 500 and 506-B, P.P.C. In the Court of VIth Additional Sessions Judge, Karachi (South). On the basis of the statement of the complainant and the preliminary enquiry conducted by the Sessions Judge cognizance of the case under section 7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and sections 500 and 506-B, P.P.C. Was taken and bailable warrants against the applicants were issued. It is against this order that the present application has been filed.
13. Mr. S. Muhammad Ishaque Khan, Advocate for the applicant mainly contended that on account of pendency of civil litigation between the parties respondent No.2 in order to coerce the applicants has initiated the criminal proceedings against them. Further according to him proof required under section 6 of the Qazf Ordinance was not available .On record to enable the learned Sessions Judge to take cognizance of the case. He lastly contended that the allegations of Zina are not made against the respondent No.2 to enable her to file the case. Reliance has been placed by him on the case reported in 1975 PCr.LJ 467.
14. Mr. Nooruddin Sarki, Advocate for the respondent No.2 has referred to the communication sent by the applicant to the S.D.M. Reproduced hereinabove and contended that by making such allegations in the complaint prima facie offence under section 7 of the Qa7f Ordinance has been committed by the applicants. He further contended that the applicants have rushed to this Court prematurely as at this stage it cannot be decided if the offence is committed or not. He relied on cases reported in 1968 SCMR 380 and 1973 SCMR 622.
15. Mr. Azizur Rahman, Advocate appearing for the State has also opposed this application as according to him the application is premature.
16. The definition of the offence of Qazf under section 3 of the Qazf (Enforcement of Hadd) Ordinance, 1979 is very were. The relevant section is reproduced below:-- Qazf.--- Whoever by words 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."
17. By the above definition it will be seen that a person will be liable to punishment for such offence even if he makes any imputation of Zina by any modes mentioned therein. It is, therefore, not necessary that a direct allegation of zina is to be expressly made against a person to bring him within mischief of the offence.
18. Imputation made in the representation in the present case prima facie discloses an offence under the said Ordinance. Contradictions if any in the complaint and statement of the complaint as pointed out by the Advocate for the applicant can only be considered when the complainant is examined in the case and applicants have cross-examined him. At this stage reference to section 6 of the Ordinance is of no avail as mode of proof required in the case can only be considered by the trial Court during the trial. The contentions advanced by Mr. S.M. Ishaque, Advocate for the applicants therefore, have no force.
19. For foregoing reasons I am inclined to agree with the contentions advanced by Mr. Nooruddin Sarki, Advocate appearing for respondent No.2 and Mr. Azizur Rahman, Advocate appearing for the State that the applicants have approached this Court in haste and no ground for quashing the proceedings has been made out. This application is accordingly dismissed.
20. It will, however, be open to the applicants to raise all pleas available to them before the trial Court.