DR. FIDA MUHAMMAD KHAN, J.- This appeal filed by Mohammad Sharif @ Shafoo, son of Mohammad Yar, resident of Mauza Kirpa Ram at present Nai Abadi, Pakpattan Sharif is directed against the judgment dated 16.2.1993 passed by the learned Additional Sessions Judge, Pakpattan Sharif whereby he has been convicted under section 11 of the Offence of Qazf (Enforcement of Hadd)
Ordinance, 1979 and sentenced to one year R.I., whipping numbering ten stripes and a fine of Rs.5,000/- or in default further imprisonment for six months.
2. Briefly stated facts of the prosecution case as narrated in complaint lodged by Mohammad Hanif in the Court of Illaqa Magistrate on 25.8.1991 are to the effect that on account of an old enmity Mohammad Sharif alongwith others attacked on him and caused him injury with a pistol fire whereupon the complaint registered an FIR against him and his companions in police station, City Pakpattan Sharif on 10.9.1989 for an offence under section 307/34 PPC which is pending adjudication. Besides this the appellant/accused also made a false allegation of having illicit relations with his wife Mst. Zarina and stated in the presence of Sultan, Ghulam Mohammad and Manzoor that the complainant had committed zina with his wife Zarina which had been seen by himself. He also alleged that the appellant/accused further made false allegation against the complainant of having abducted his wife. Consequently the appellant/accused moved an application to Deputy Inspector General of Police, Multan wherein he levied the same allegation.
During investigation of the case he repeated the same allegation of zina in the presence of aforementioned persons. However, the allegation was proved false. On 4.3.1991 the appellant/accused filed a writ petition against the complainant and reiterated the same allegation of zina against him. The Writ petition was however dismissed. Submitting the copies of above documents the complainant prayed for proceedings against the appellant/accused in accordance with the provision of Qazf Ordinance. After necessary investigation the appellant/accused was challaned to face the trial.
3. At the trial prosecution examined three witnesses. P.W.1 is Mohammad Hanif. He reiterated his statement as mentioned above. P.W.2 is Sultan and P.W.3 is Manzoor. They are witnesses to the fact that the present appellant/accused had charged the complainant of committing zina with his appellant's wife and abducting her thereafter. They supported the case of prosecution.
4. The appellant/accused made a statement under section 342 Cr.P.C, and pleaded innocent.
However he stated as under:- "It is correct that I had filed a petition with DIG, Multan and also filed the writ petition Ex.PF in the honourable Lahore High Court, Multan Bench. The fact of the matter is that PW1 Muhammad Hanif and his wife abducted my wife Mst. Zarina and Muhammad Hanif has been subjecting her to zina.
However, my case was not registered by 'the police on the pretext that in order to save my skin from the case registered against me by Muhammad Hanif u/s 307 PPC. I had lodged report against him."
He further stated in the following words: "The complaint has been filed against me by Mohammad Hanif complainant in order to save himself from the prosecution of a case for abducting my wife and subjecting her to zina. The PWs have deposed against me due to their friendship with complainant."
He also made statement under section 340(2) Cr.P.C, in the following words:- "Muhammad Hanif complainant is related to me, from my brotherhood. On 9.9.1989 when I went back to my house after closing my shop, it was 8.p.m. When I opened the outer door of my house I found Mohammad Hanif complainant committing zina with my wife Mst. Zarina Bibi. On seeing me he scaled over the wall and fled away. I assembled panchait for registration of case against him.
On 10.9.1989 at 10.a.m. I was arrested by the police on the false allegation that I had injured the complainant with a fire shot, and he had registered against me a case u/s 307 PPC. I was confined to jail. After two months, I was informed by some one that my wife was abducted by complainant and she had taken alongwith her, my cash and other articles lying in my house. I was released on bail on 4.1.1990. After my release on bail, I sent application to DIG, Prime Minister and higher police authorities for registration of case. Police did not register the case. Thereafter I filed a writ petition in honourable High Court, Multan Bench. My said writ petition was dismissed on the ground of delay.
Muhammad Hanif complainant also committed zina with my wife. His wife who was also a woman of bad character used my wife for prostitution. Complainant Muhammad Hanif then got instituted a case against me from my wife for the custody of the children. He also got instituted a suit for dissolution of marriage from her against me. Mst. Zarina my wife returned to me after 3-1/2 years of her abduction. The complainant was pressurising my wife Mst. Zarina through police that had she made any statement against him, she would be done to death. The present complainant is false.
His wife Mst. Zarina also appeared as D. W.l and made the statement in the following words:- "I know Hanif. About four years ago he committed zina with me. My mouth was tied down by him.
My husband reached on the spot. The complainant ran away when my husband tried to apprehend him. After two months of the said occurrence, he abducted me. My husband was sent to Jail as a result of a false case registered by complainant against him. The complainant after abducting me kept me in illegal confinement in the village. He had been committing zina with me there. He had been also pressurising me not to make statement otherwise I shall be done to death.
The complainant also got instituted from me the case after obtaining my thumb-impression on blank papers. I never appeared in said cases. The complainant then left me to the house of my parents. In the suit filed by accused for restitution of conjugal rights I appeared at Chichawatni, where we compromised. My husband also executed an agreement. When I was abducted cash Rs.
34,000/- ten tolas gold ornaments and six tolas of silver which were in my custody, were also taken by the complainant, besides that Refrigerator, T.V. And other house hold articles were also taken by the complainant. The complaint has been filed by the complainant against my husband in order to pressurise him that he may not initiate any proceedings against him. My husband made many efforts for my recovery and for registration of case of my abduction but failed. My husband is innocent."
5. I have heard the Learned counsel for the parties and have perused the record with their assistance.
6. So far as the imputation of zina by the appellant/accused against the complainant is concerned it is proved by the depositions made by P. W.l Mohammad Hanif, complainant, P.W.2 Sultan and P.W.3 Manzoor and has been duly supported by the documentary evidence produced by the complainant. In his statements under sections 342 and 340(2) Cr.P.C, the appellant/accused has also admitted the same as correct. The appellant has failed to produce witnesses in support of his allegation and the same was found false during the investigation as well as in the subsequent stages. The words of imputation of zina uttered by him against the complainant are also unambiguous in the import. As such there remains no doubt that the offence of Qazf as envisaged by section 3 of the said Ordinance has been committed by him.
7. It is worth mentioning that the appellant/accused levied the allegation of zina against the complainant after he (i.e. Complainant) had instituted a case against him (i.e. Appellant) under section 307 PPC on 10/9/1989. Apparently the said allegation of zina was a rebuttal to the said case.
It is interesting to note that the appellant/accused moved an application in this connection to D.I.G.
Multan on 4.1.1991 and filed a writ petition in the Lahore High Court Multan Bench in March, 1991 against the complainant and also against his wife Mst. Zarina but later on produced his wife mst.
Zarina as D. W.l. Her evidence is neither confidence inspiring nor duly corroborated.
8. The learned counsel for the appellant contended that it is a case of Lian and in such cases the parties are absolved of the criminal liabilities. He referred to the famous case of Hilal Ibn Ummayah as reported in: In this connection it is however, pertinent to mention that in the aforementioned incident the proceedings of 'Lian' were adopted by the parties and they were duly Separated whereas in the instant case no such proceedings have been conducted. The wife of the appellant, accused of having committed zina with the complainant, has rather been produced as a defence witness. As such the case stands at different footings. Moreover it is noteworthy that even in the case of 'Lian' the spouses may be absolved of the criminal liabilities in respect of each other, after the Lian proceedings are duly conducted, but as far as the male partner (accused by name of having committed zina with the lady/wife) is concerned he has a right to demand Qazf proceedings against the said husband who will not stand automatically absolved from the criminal liability, after the proceedings of Lian, in his case. The learned counsel was not in a position to lay hand on any specific case to support his contention. The learned trial court has discussed the evidence in detail and there is nothing that may call for an interference.
9. Consequently for the reasons stated above, I maintain the conviction and sentences of the appellant and dismiss his appeal.