' This appeal hinges upon an important point regarding definition and interpretation of Qazf as given in section 3 of the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Qazf Ordinance) read with definition of Zina as given in section 4 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The law point can be summarized as under:-- ' As per contention of Sardar Muhammad Latif Khan Khosa, learned counsel for the appellants:-- "If allegation of Zina is levelled against a lady with a person with whom she is admittedly married on the ground that marriage between them was not legal then such an act neither attracts the definition of Qazf as defined in the Qazf Ordinance nor it can be called Zina as defined in section 4 of the Offence of Zina Enforcement of Hudood Ordinance, 1979", while Contention of Malik Muhammad Nusrat Mehal, learned counsel for the State is that:-- "If it is proved that a lady was validly married with a person then levelling allegation of Zina against any of them by any person under any impression such as that they were not validly married would attract the offence of Qazf."
2. Brief facts of this appeal revolve around a chequered history of litigations between the parties which are the result of certain un-lslamic traditions and which are still prevailing in the tribal areas.
These traditions include Watta-Satta marriage, Kara-Kari or selling of the females like saleable commodities.
' In this appeal too, subject-matter of Watta-Satta marriage (marriage in exchange) are two ladies namely Mst. Hayatan and Mst. Hamida. Appellant Ghulam Farid, aged sixty, is uncle of Mst.
Hayatan. Appellant Ghulam Rasool son of appellant Ghulam Farid claimed that his Nikah was performed with Mst. Hamida when they were minors in exchange of Nikah of Mst. Hayatan. Third appellant namely Kamal appeared on the scene to support claim of other two appellants.
' One Muhammad Bux had also appeared as witness with strength of fictitious and forged Nikahnama between Mst. Hamida and appellant Ghulam Rasool. The first round of litigations started as under:-- "When Mst. Hamida attained puberty, she was decided to be got married with one Akbar instead of appellant Ghulam Rasool. This information led Ghulam Rasool to file a suit for restitution of conjugal rights on 1-3-1988 bearing Suit No,46/88. He also succeeded to get stay from the Civil Court on 1-6-1988 so that the proposed marriage of Mst. Hamida with Akbar could not be solemnized on account of her Nikah with him as per his claim. In spite of that stay order Mst.
Hamida was got married with Akbar by showing such date of Nikah which could not fall within the clutches of stay order. Notwithstanding the disputed date of performance of Nikah of Mst. Hamida with Akbar, an application for contempt of Court was filed by Ghulam Rasool alleging therein the violation of stay order and it also gave a chance to appellant No,1 to start criminal proceeding against Mst. Hamida. As a result of her marriage a complaint bearing No,20/88 under sections 10, 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 34, P.P.C. Was filed on 30-6-1988 against Mst. Hamida and her other family members. During pendency of these two cases i,e, Suit No,46/88 and criminal complaint No,20/88 the strained relationship between the parties were cooled down with the result that they filed a compromise application before the Civil Court. Father of Mst. Hamida. Namely Allah Wasaya, is stated to have executed a promote of compromise which fact is denied by the learned counsel for the State. However, it is an admitted reality that the suit for restitution of conjugal rights was withdrawn notwithstanding the disputed claim of disputed pronote. On the basis of the withdrawal of suit, an application was filed by Ghulam Rasool (appellant No,1) for withdrawal of complaint which application was rejected by the learned Sessions Judge, Dera Ghazi Khan. On the other hand the accused persons moved an application under section 265/K, Cr.P.C. For their acquittal before the same Court which was allowed on 20-7-1991. This was the end of first round."
3. After this first round of litigation Mst. Hamida authorised her father Allah Wasaya as her Wali to start the second round of litigations by filing a complaint under section 7/10 of the Qazf Ordinance read with sections 500 and 501, P.P.C. On 22-7-1993 i,e, after about two years of her acquittal. The learned Judge convicted the appellants namely Ghulam Farid (aged 60), his son Ghulam Rasool (aged 22) and Kamal (a witness of Nikah) but the fourth accused namely Muhammad Bux, who had prepared a forged document in the shape of Nikahnama between Mst. Hamida and Ghulam Rasool, was acquitted because in view of the Court the said person had not committed any offence under the Qazf Ordinance in the light of definition of Qazf but I am of the view that he was the main culprit on account of whom these litigations were rooted. Therefore, the learned Sessions Judge was not justified to spare such Nikah-Khawan and it was his moral duty to have sent his observations to the concerned authorities with this suggestion that his powers for performing Nikah be withdrawn in future.
Similarly I am of the view that after promulgation of Qanun-e-Shahadat Order such witness falls out of the denifition of competent witness as required under Article 3 of the Qanun-e-Shahadat and, therefore, statement of such witness be not accepted in any case in future unless corroborated with other pieces of evidence or scrutinised by any Court properly.
4. The present appeal was preferred against the said order of conviction and sentence. In the light of abovementioned background, contention of the learned counsel for the appellant is that allegation of Qazf cannot be established in such circumstances where the proceedings started by appellants were based under the impression of Nikah over Nikah having foundation on an uri-Isl arn ic tradition of treating poor ladies as exchangeable commodities.
' On the other hand the learned counsel for the State has strongly controverted this contention and stated that allegation of Zina against a married lady, even with her husband in such- circumstances. Fully disturbs the peace of that family by damaging their reputation. On account of these litigations they have been under the sword of mental torture for several years, and therefore, the act of these persons would be attracted by section 11 of the Ordinance.
5. Be that as it may, it is an admitted position that Mst. Hamida was married with Akbar. I have also no doubt that peace of family was disturbed on account of these litigations but the proper path, in my view, was to file a suit for damages and not to start criminal proceedings under the Qazf Ordinance. The criminal case, out of which the present appeal arose, was based upon the background of civil litigations and in all such cases the proper forum to solve civil litigations was only the Civil Court. The complainant-appellants could file a suit for dissolution of marriage which had taken place between Mst. Hamida and Ghulam. Rasool if it was void, invalid or irregular in the eyes of present appellants. Filing of suit for restitution of conjugal rights in the Family Court was neither a proper forum nor a proper step except an act of harassment. No doubt the act of present appellants was not an appreciable act but it can be said with certainty that it was not falling within the definition of Zina or Qazf particularly when the pair was admittedly married one notwithstanding that the said marriage was irregular, invalid or illegal.
6, The second point which attracted my attention was the delay in loading the complaint under Qazf Ordinance i.e approximately after about two years. The first civil suit and the criminal complaint came to an end on 20-7:1991 and the complaint under the Qazf Ordinance was filed on 22-7-1993. In Islam, delay is a factor which can be a ground sufficient to wash away such complaints. Therefore, in my view, this delay of about two years was also sufficient to bring the said complaint to an end even if it was not compoundable. This appeal can also be allowed on this score alone. However, I consider it necessary to explain the point of Qazf with the help of following example:-- "If A (a male) is married with B (a female) and C puts an allegation of Zina against B having illicit relations by alleging therein the commission of Zina with person D by using words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an Imputation of Zina with intention to harm, or knowing or having reason to believe that such imputation will harm, the reputation, or hurt the feelings, of such person, then act of such person would amount to commission of an offence termed as Qazf. But, if allegation of Zina is put against B with her relations with A who is admittedly her husband then such an act would not amount to Qazf because allegation of Zina would not be established against a husband even if his marriage is declared irregular, void or invalid by a Civil Court. In such cases the marriage can be regularized or dissolved, as the case may be, but the person who levelled the allegation of Zina cannot be punished under the allegation of Qazf. At the most, such allegations may amount to defamation but not to be Qazf as defined in the Qazf Ordinance, particularly on account of lack of knowledge regarding these provisions of law.
' However, I want to make it clear that these tentative observations would not be treated as a base to start fresh litigation between the parties."
7. The upshot of the above discussion is that this appeal is allowed, conviction and sentences are set aside and the appellants are acquitted of the charge. They are on ball. Their bail bonds are discharged. Appeal stands disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.