1. ' CMA No, 3818/93 is an application under Order VII, Rule 11, C.P.C. Filed on behalf of the defendant praying therein that the plaint of the plaintiff be rejected as no cause of action has accrued to the plaintiff. Before I deal with the above CMA, it would be pertinent to point out that earlier an application under Order VII, Rule 11, C.P.C., was moved on behalf of the defendant in the present case, being CMA 7885/92, which was withdrawn on the understanding that after the settlement of issues by the Court, a preliminary issue about the maintainability of the suit may be framed. The issues were adopted by the Court vide order dated 21-2-1993 wherein issue No,1 deals with the maintainability of the suit. However, in the meantime the present application under Order VII, Rule 11, was moved. I, therefore, propose to take up and decide both i,e, issue No, 1 and CMA 3818/93, by this order.
2. ' Mr. Usman Ghani Rashid, the learned counsel for the defendant has raised the preliminary point of limitation that the suit is barred by time.
3. ' To appreciate and decide this objection, the facts of the case, as per the plaint, are that the plaintiff Mst. Ruby Akhtar and the defendant Cap. S.M. Aslam, were married on 14-8-1976 and 2 children, namely, Mahwish and Moazzam, were born within this wedlock. The children were in the custody of the plaintiff and have never been maintained by the defendant. The defendant was serving in Merchant Navy and was in the habit of marrying young girls and divorcing them, the plaintiff being the third wife of the defendant. It was also alleged that the defendant has also solemnized his fourth marriage. According to the plaintiff, the defendant had been trying to compel her to lead an immoral life and due to this attitude, both the parties were blaming and abusing each other which finally resulted in separation of the parties and the plaintiff, alongwith her two children, shifted to her parents' house and never came back to the defendant.
4. ' On 19-12-1987, the defendant divorced the plaintiff. The divorce was subsequently confirmed by the Chairman of the Conciliation Court. It is alleged that the dower amount of Rs, One lac was not paid by the defendant to the plaintiff.
5. ' Atter about a week of this divorce, the defendant sent a legal notice dated-27-12-1987 to the plaintiff, levelling allegations of immorality and bad character. To harass the plaintiff, the defendant also filed Guardians and Wards Case No, 622 of 1988, praying for the custody of the two minors and again levelling allegations of leading a corrupt life against the plaintiff.
6. ' On 22-10-1988, the plaintiff got married to one Haji Adam and started living, alongwith her two minor children, with her new husband. The defendant, on the pretext of meeting the children, started visiting the plaintiff's new house and again started talking about her and levelling allegations of immorality and bad character. So much so, that the neighbours, servants and even the minor children of the plaintiff came to know about these allegations which disrupted her new family life and caused her mental torture and embarrassment.
7. ' In view of the above circumstances, the plaintiff sought legal remedies by filing a criminal complaint, being Case No, 639/90, before the learned Sessions Judge, Karachi (East) under section 7/11 of the Offence of Qazf Ordinance, 1979. The learned trial. Court, after completing preliminary inquiry, took cognizance of the case and proceeded with the matter. Evidence of both the parties was recorded and the learned Judge was pleased to acquit the defendant vide judgment dated 4- 2-1992. The plaintiff assailed the above judgment before the Hon'ble Federal Shariat Court in Criminal Appeal No,14-K of 1992. The appeal was allowed vide judgment dated 28-7-1992, convicting the defendant and sentencing him to undergo R.I. For six months with whipping of ten stripes and fine of Rs,1,000 in default of payment of fine, to undergo further simple imprisonment for one month.
8. ' In view of the above judgment, the plaintiff felt relieved and exonerated of all the allegations levelled against her by the defendant of being bad character and leading immoral life, the same having been proved to be false. The plaintiff, having gone through great mental torture for continuous five years due to harassment and allegations levelled against her by the defendant, has filed this suit for damages to the tune of Rupees twenty-five lacs against the defendant.
9. ' I have heard Mr. Mumtaz Hussain Shah, the learned counsel for the plaintiff, who has also filed written arguments, and Mr. Usman Ghani Rashid, learned counsel for the defendant.
10. ' Mr. Usman Ghani Rashid, the learned counsel for the defendant, has vehemently argued that as this is a case of libel/slander, Articles 24 and 25 of the Limitation Act would be applicable and the starting date of the period of limitation will be the date of divorce which is 19-12-1987 and since this suit was filed on 29-8-1992 i,e, after more than five years, and the period for filing a suit under Articles 24 and 25 of the Act is one year, the suit is hopelessly barred by time and, as such, liable to be dismissed.
11. ' On the other hand, Mr. Mumtaz Hussain Shah, the learned counsel for the plaintiff, has contended that in the present case the cause of action to the plaintiff from the date of divorce and continued till the judgment of the Federal Shariat Court was pronounced when the defendant was convicted and sentenced. Consequently, the plaintiff felt exonerated from all the allegations levelled against her and she filed the present suit for recovery of damages amounting to Rs,25 lacs on account of "'Qazf'. According to the learned counsel for the plaintiff, Article 120 of the Limitation Act will be applicable as there is no special Article for the cases of Qazf and, as such, the residuary Article will come into operation. In support of his above contention, the learned counsel has relied upon the following cases:
(i) Sultan Mahmood Khan v. Tufail Ahmed, etc. (NLR 1980 AC 450),
(ii) Karachi Parsi Cooperative Housing Society v. Karachi Municipal Corporation (1975 SCM R 368),
(iii) Government of Azad Jammu & Kashmir v. Safdar Hussain Shah (PLD 1969 AJ&K 1), and
(iv) Mst. Safdar Jan v. Abdul Majid (PLD 1965 (W.P.) Pesh. 5).
12. Reverting back to the contention of the learned counsel for the defendant/applicant, it would be advantageous to reproduce Articles 24 and 25 of the Limitation Act, which read as follows: {{TABLE}} "24. For compensation One year for libel.
25. For compensation One year for slander. When the libel is published. When the words are spoken, or, if the words are not actionable in themselves, when the special damage complained of results."
13. ' Article 24 of the Act shows that the period of limitation will start from the date when the libel is published while Article 25 shows that the period of. Limitation will start from the date when the words are first spoken or if the words are not actionable, in themselves, when the special damage complained of results. Both the Articles are in reference to compensation for libel and slander respectively.
14. ' In the present case there is no publication whatsoever because according to the Black's Law Dictionary, Sixth Edition the word "publication" means: "To make public; to make known to people in general; the act of publishing offering it to public notice, or rendering it accessible to public scrutiny. An advising of the public; a making known of something to them for a purpose."
15. According to the above-quoted definition of the word "publication", in the present case there is no publication, as such. Since both the above Articles of the Limitation Act deal with libel and slander, in my opinion, the same are not applicable in the present case. And even if, for the sake of arguments, it is assumed that Article 25 is applicable, then the said Article provides that "if the words are not actionable in themselves". In the present case the words attributed to the plaintiff in the notice served by the defendant as well as the words uttered before the servants and children and other household people are actionable and the plaintiff took action on those words which culminated in the defendant's conviction and sentence by the Federal Shariat Court, as stated above. As such, the cause of action which accrued to the plaintiff on the date of divorce as the same was based on accusations, continued till the day when the judgment of the Federal Shariat Court was announced. The present suit was filed within a month of the passing of the said judgment and, therefore, even if the contention of the learned counsel is accepted, the present suit has been filed within a period of one year, as provided under Article 25 and is within time.
16. Law of Qazf is a special law and is absolutely different from the general law of the land and since no limitation period has been provided specifically, Article 120 of the Limitation Act will apply which clearly contemplates period of limitation for filing of suits for which no period of limitation is provided elsewhere in the Schedule.
17. ' I have perused the sections mentioned by the learned counsel and have gone through the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.
18. ' Before I dwell any further on the Law of Qazf, I must mention here that in my opinion, the Federal Shariat Court, by convicting and sentencing the defendant/applicant as above, has confirmed that all the allegations levelled against the plaintiff were false, which gave rise to the right to sue in favour of the plaintiff on account of Qazf. To understand this new law, it would be beneficial to reproduce the relevant provisions, which read as under: "3. Qazf.--Whoever by words either spoken or intended to be read, or by sign or by visible representation, 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.
19. Explanation 1, Not relevant. Explanation 2 .............. Not relevant. First Exception (Imputation of truth which public good requiits to be made or published). It is not gad to impute zina to any person if the imputation be true and made or published for the public good..." (Underlining is mine).
20. ' A bare reading of the above-quoted relevant provisions of the said Ordinance would.Reveal that:
(i) Unlike the general terms 'libel' and 'slander', which are general in terms and wide in scope, the term `Qazfl only relates to false imputation of Zina.
(ii) To proceed against the Qazf (the person who levels the charges of Zina against any other person), it is imperative that the allegation of Qazf is proved to be false and only then the Makhzoof (the person accused of Zina) can proceed against the Qazf.
21. In view of the above, the date from which the period of limitation would start running would be the date on which the allegation of Zina was proved baseless and not the date on which the imputation of Zina was made as on such date it was yet to be proved whether such allegations were right.
22. ' In the present case, the allegations of Zina were made at the time of divorce and later through the Legal Notice dated 2742-1987 and then during the course of proceedings in Guardians and Wards case dated 31-5-1988. On the basis of these very allegations, Criminal Complaint No, 639/1990 was filed and in consequence of the order passed on the criminal complaint, Criminal Appeal No, 14-K of 1992 was filed. As such, the cause of action continued to the plaintiff till the date when the Federal Shariat Court announced its judgment, which finally settled the matter between the parties, proving all the allegations against the plaintiff to be false, giving ground to the plaintiff to take action under the provisions of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. Thus, in my opinion, the right to sue accrued to the plaintiff for claiming damages on account of Qazf on the date on which the judgment of the Federal Shariat Court in Cr. Appeal No, 14-K of 1992 was announced i,e, 28-74992.
23. ' Now the next question for determination is whether Articles 24 and 25, or Article 120 of the Limitation Act would apply in the present case.
24. As stated above, Articles 24 and 25 of the said Act relate to Libel and Slander, respectively.
25. Admittedly, this suit was filed for recovery of damages on account of Qazf. The tems `Qazf bears special meaning and covers the false accusation of `Zina', whereas the terms 'Libel' and 'Slander' are general in terms and wide in scope of application. I find myself in agreement with the contention of the learned counsel for the plaintiff, and hold that since there is no special article for the cases of Qazf, residuary Article 120 of the Limitation Act would be applicable in the present case and the period of limitation for the purposes of filing of the suit would be the date of judgment of the Federal Shariat Court i,e, 28-7-1992. Since the suit was filed on 29-8-1992, the same is held to be well within time.
26. ' In view of above, CMA 3818/93 is dismissed. Since issues Nos. 1 and 2 deal with the maintainability and limitation of this suit, which have been disposed of by this order, the same may be deleted from the issues adopted by the Court.
27. ' Office is directed to fix the case for further proceedings.