' FIDA MUHAMMAD KHAN, J.--- This appeal jointly prcfrred by (1) Bakhat Ali son of Bakhsho and (2)
Khuda Yar son of Sarang, both residents of Chak No,129/DNB, Tchsil Yazman, District Bahawalpur is directed against the judgment, dated 7-1-1993 passed by the learned Sessions Judge, Bahawalpur whereby they have been convicted under section 7(3) of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and sentenced to whipping numbering eighty stripes each. A Criminal Reference No,1/L of 1993 has been made for the same.
2. Briefly stated facts of the case as narrated in a complaint filed by Muhammad Arshad before Illaqa Magistrate 1st Class, Ahmadpur Sharqia on 13-4-1987 are to the effect that on 22-3-1985 Mst.
Khatoon Mai recorded F.I.R. At Police Station Dera Nawab Sahib, District Bahawalpur wherein she alleged that Arshad (the complainant), Liaqat Ali and Akbar Hussain had subjected her to Zina-bil- Jabr and the occurrence was seen by Bakhat Ali and Khuda Yar appellants/accused but after the investigation the case was cancelled. Then Mst. Khatoon Mai filed a criminal complaint to the same effect which was dismissed by the Court of Session. He alleged that subsequently on 25-7-1985 Mst. Khatoon Mai got recorded a statement before a Magistrate 1st Class, Ahmadpur Sharqia under section 164, Cr.P.C. Wherein she disclosed the whole conspiracy. Consequently Muhammad Arshad filed an application before Khan Muhammad, S.I./S.11.0., Dera Nawab, District Bahawalpur for registration of a case under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 but he took no action. Then he filed a writ petition in the Lahore Fligh Court, Bahawalpur Bench Bahawalpur wherefrom an order for the registration of the case was passed. He further alleged that the said S.H.O. In league with Mst. Khatoon Mai and the appellants/accused did not make investigation in the F.I.R. Got registered by him and instead kept on spoiling the case by reinvestigating the former case registered by Mst. Khatoon Mai against him which had already been dismissed and resultantly Muhammad Arshad and Muhammad Akbar had to enter into bail bonds in the same connection. He further submitted that after recording the preliminary statements of the P.Ws., Mst. Khatoon Mai alongwith two appellants/accused was ultimately summoned as accused and charged under section 7 of the Offence of Qazf (Enforcement of Hadd)
Ordinance, 1979.
3. Mst. Khatoon Mai and the appellants/accused did not plead guilty. At the trial the complainant Muhammad Arshad appeared as P.W.1 and reiterated his statement as mentioned above. In support of his proposition he tendered in evidence the following documents:- ' Exh.P.A., certified copy of F.I.R. No,49, dated 22-3-1985 recorded at the instance of Mst. Khatoon Mai against Muhammad Arshad etc. ' Exh.P.B. Copy of F.I.R. No,133, dated 25-10-1985 registered by Muhammad Arshad, complainant against Mst. Khatoon Mai and appellants/accused.
' Ddi.P.C. Copy of statement, dated 25-4-1985 of Mr. Shamsul Hassan Lughari, D.S.P. Recorded by the learned Additional Sessions Judge, bail application filed by Muhammad Arshad, complainant wherein he has made statement about his innocence.
' Exh.P.D. Copy of the complaint filed by Mst. Khatoon Mai against Muhammad Arshad etc. ' Exh.P.E. Copy of preliminary statement of Mst. Khatoon Mai, dated 25-5-1985.
' Exh.P.F. Copy of preliminary statement dated 29-5-1985 of Bakhat Ali, appellant/accused.
' Exh.P.G. Copy of preliminary statement dated 29-5-1985 of Khuda Yar, appellant/accused.
' Exh.P.H. Copy of judgment dated 30-5-1985 whereby the aforementioned case of Mst. Khatoon Mai was dismissed.
' Exh.PJ. Copy of statement of Mst. Khatoon Mai under section 164, Cr.P.C. Before Magistrate 1st Class Ahmadpur Sharqia wherein she has stated that the case of Zina was falsely registered.
' Exh.P.K. Copy of order dated 13-8-1985 passed by Lahore High Court, Bahawalpur Bench in the writ petition filed by complainant Arshad.
' Exh.P.L. Copy of order, dated 7-5-1986 regarding confirmation of pre-arrest bail application made by Muhammad Arshad.
' P.W.2 is Faiz Ahmad who deposed that Mst. Khatoon Mai got a case of Zinabil-Jabr registered against Muhammad Arshad, Liaqat and Akbar at Police Station Dera Nawab wherein the said accused were found innocent and the case was cancelled. He also added that the false case had been registered by Mst. Khatoon Mai in collusion with Bakhat Ali, Khuda Yar appellants/accused, Yar Muhammad and Khan Muhammad, S.II.O., Police Station Dcra Nawab.
4. In their statements under section 342, Cr.P.C. The appellant/accused Bakhat All denied the allegation and pleaded innocent. He stated that he had narrated the true facts before the learned Additional Sessions Judge, Bahawalpur. Similarly the appellant/accused Khuda Yar also denied the allegation and pleaded innocent and stated that he had narrated the true facts.
5. Mst. Khatoon Mai also appeared and made statement under section 342, Cr.P.C. Wherein she denied to have levied a false charge of Zinabil-Jabr against Muhammad Arshad in order to damage his reputation or hurt his feelings. She stated that her "allegations were correct". She further stated as under:-- "The complainant is an influential person who in collusion with the police got my case cancelled. I am a poor lady and as such could not afford to file a revision or appeal against the dismissal of my complaint. I did not levy any false charge of Zina-bil-Jabr but had stated the factual position."
6. It is worth mentioning that the case against Mst. Khatoon Mai the former complainant abated due to her death and the two appellants/accused who were witnesses in the said case were convicted and sentenced as mentioned above.
7. We have heard the learned counsel for the parties and have perused the record with their assistance. It transpires from the record that on 22-3-1985 Mst. Khatoon Mai filed an F.I.R. Against Muhammad Arshad wherein she charged him as well as two other persons for the commission of the Offence of Zina-bil-Jabr with her. After investigation the case was got cancelled as having not been proved. Then she lodged a complaint Exh.P.D. Wherein she reiterated her allegation. In her preliminary statement Exh.P.E. Made on 25-5-1985 she repeated her allegation. The appellants Bakhat Ali and Khuda Yar who were stated to be witnesses of the said case also made statements Exh.P.F. And Exh.P.G. Respectively on 29-5-1985 wherein they supported the version of Mst. Khatoon Mai. The said case was dismissed by the learned Additional Sessions Judge-I, Bahawalpur on 30- 5-1985. It is the grievance of the complainant Muhammad Arshad that Mst. Khatoon Mai (who subsequently died during the proceedings) and the convicted appellants/accused have levelled false allegation of Zina against him and have thus committed an offence punishable under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. The learned counsel for the appellants submitted that no offence was made out according to the provisions of law. The learned counsel for the State was also of the same view and he did not support the conviction.
8. The main question of concern in this case to be decided is the fact whether an accusation of Zina-bil-Jabr in a Zina case by any witness levelled before any person who has lawful authority over that person with respect to the subject-matter of accusation amounts to Qazf. It seems pertinent here to mention that the injunctions of Islam regarding punishment of Hadd for the Offence of Qazf have been given in Sura Noor verse 4 and the trend of that verse indicates that mere failure of a complainant to prove his allegations in Court does not make the witnesses of the said offence liable to Qazf punishment unless it is proved that they had mala fidcly concocted a false accusation. The verse reads as under:-- "And those who launched a charge against chaste women, ' And produce not four witnesses (to support their allegations), Flog them with eighty stripes; and reject their evidence. Ever after: for such men are wicked transgressors." (24 : 4)
' Here it seems appropriate to quote an excerpt fromTafheemul Qur'an wherein Maulana Maudoodi writes on the issue as under:- {{URDU TEXT}}
9. The same view was held also by a Full Court of Federal Shariat Court in its judgment reported as PLD 1989 FSC 95 in the following words:- {{URDU TEXT}} ' The relevant provision of Qazf Ordinance applicable in this case is subsection (b) to the second exception in section 3 of the Qazf Ordinance. It reads as under:-- "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) .
(b) According to the finding of the Court, a witness has given false ,evidence of the commission of Zina or Zina-bil-Jabr.
(c) .
In the case before us no doubt there is an accusation of Zina by the two appellants/accused against the complainant which is available in the form of their statements Exh.P.F. And Exh.P.G. The same statements have been duly owned by both the appellants as "narration of true fact" before the learned Additional Sessions Judge, Bahawalpur in the instant case. However, the judgment passed in the said case by the learned Additional Sessions Judge-I, Bahawalpur on 30-5-1985 clearly shows that the case was dismissed by him because he "did not see any incriminating evidence involving the accused in this heinous offence". The learned trial Court however did not remark or observe that the appellants/accused who had appeared as witnesses had not preferred the accusation in good faith. Though their statements were merely found as "not confidence- inspiring" but there is no finding of the Court that the evidence given by them was false. Although there is allegedly a statement (Exh.P.J.) of Mst. Khatoon Mai under section 164, Cr.P.C. In July, 1985 recorded before Magistrate 1st Class, Ahmadpur Sharqia wherein it has been stated that the case of Zina was falsely registered, it is worth mentioning that neither Mst. Khatoon Mai was ever confronted with the said statement nor the Magistrate who recorded the statement was ever produced to attest the same. Moreover, the said statement does not fmd any mention of the appellants nor its contents show that the appellants were involved in any way in getting the said case recorded against the complainants. It is also worth mentioning that there is a reference to some case lodged by Mst. Khatoon Mai that her son Allah Ditta was beaten by Muhammad Yousaf, a serva:.t of the complainant, but it is not known whether it was the same case. There seems no reason for her to make the said statement on 25-7-1985 when her case had already been decided and dismissed by the learned Additional Sessions Judge vide his judgment, dated 30-5-1985.
10. Consequently for the reasons stated above, we accept the appeal, set aside the conviction and sentences of Bakhat Ali son of Bakhsho and Khuda Yar son of Sarang, appellants and acquit them of the charge. They arc on bail, their bail bonds are discharged. The Criminal Reference No,1/L of 1993 is rejected and disposed of accordingly.