' This Constitutional petition filed under Article 203-DD of the Constitution of the Islamic Republic of Pakistan, read with section 561-A, Code of Criminal Procedure by Major-General (Retd.) Abdul Aziz, his wife Mst. Irshad Begum and his daughter Mst. Abida Aziz against Mst. Kanwal Rabbani seeks quashment of proceedings initiated by the learned Additional Sessions Judge, Gujrat for issuance of summons against the petitioners herein by order, dated 3-6-1996 on a complaint filed by the respondent herein under section 7/11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the Ordinance).
2. The facts of the matter are very simple. Complainant Mst. Kanwal Rabbani was married to Abid Aziz son of Abdul Aziz petitioner No,1 on 22-12-1994. A daughter was born during this wedlock on 11- 2-1996. The husband divorced her wife on 14-4-1996. The complaint was filed by Mst. Kanwal Rabbani against the petitioners herein on 15-5-1996 in the Court of Illaqa Magistrate, which was sent up for trial to the Sessions Court, Gujrat. According to the contents of the complaint all the 3 petitioners/accused had levelled false charge of Zina against the complainant and had said that the child conceived by her was illegitimate. The complainant had narrated in paragraph 3 thereof that Abdul Aziz, petitioner, No,1/accused again levelled the same charge against the complainant on 26-8-1996 in the presence of 18 persons of a delegation before whom the complainant had taken special oath on Holy Qur'an that she had not committed any Zina. Paragraph 4 of the complaint further discloses that Mst. Irshad Begum and Mst, Abida Aziz petitioners Nos.2 and 3/accused had charged the complainant many time before witnesses for false charge of Zina.
3. I have heard learned counsel for the parties at length who also led me through the entire record of the case.
4. The learned Additional Sessions Judge, who was seized with the matter, recorded the statements of the complainant and her witness Muhammad Yasin on 26-5-1996 in the preliminary inquiry under section 202, Cr.P.C. And then on 3-6-1996 ordered the issuance of process against the petitioners/accused for 17-6-1996. The complaint was filed under section 7/11 of the Ordinance.
5. Complainant Mst. Kanwal Rabbani deposed in the preliminary inquiry that on 8-9-1995 she was present with her mother Mst. Walayat Begum when all the 3 petitioners/accused charged her that she had committed Zina with somebody else. She further stated that subsequently in the presence of 18 persons she had taken oath on Holy Qur'an that she had been conceived from her husband Abid Aziz and that she had never committed any Zina. She further stated that the said 18 persons went to the petitioners to assert innocence of the complainant but even in their presence Mst.
Irshad Begum and Mst. Abida Aziz repeated the same allegation. The learned Additional Sessions Judge had also recorded the preliminary statement of witness Muhammad Yasin on the same date. He had stated that Abdul Aziz and Mst. Irshad Begum had levelled false accusation against the complainant. He further stated that thereafter in his presence and also in the presence of 17 other persons Mst. Kanwal Rabbani provided oath on Holy Qur'an that she had conceived of her husband Abid Aziz and she had never committed Zina. This witness further stated that he and other 17 persons went to the petitioners and told them that Mst. Kanwal Rabbani was innocent but in his presence the aforementioned accused said that she had committed Zina and she had not conceived from her husband.
6. The minute perusal of the statement recorded during the inquiry would show that on the first occasion when the charge of Zina was levelled against the complainant on 8-9-1995 only her mother Mst. Walayat Begun was present and no other person was present and that charge was made against Abdul Aziz petitioner No,1 and Mst. Irshad Begum petitioner No,2. Her statement further revealed that subsequently she had taken oath on Holy Qura'n in the presence of 18 persons but at that time none of the petitioners was present and no such charge was levelled against her by any of them. On the contrary the statement of witness Muhammad Yasin would reveal that petitioner No,1 and his wife petitioner No,2 had levelled false accusation of Zina against the complainant but it is not known whether this accusation was made in his presence. According to his statement the complainant had thereafter taken oath on the Holy Qura'n and he and other persons had gone to the petitioners to tell them that she was innocent and then in his presence petitioners Nos.1 and 2 and Abid Aziz had said that she had committed Zina and she had not conceived from Abid Aziz.
' This will show that so far as the first alleged accusation is concerned witness Muhammad Yasin was not present and no accusation was made in his presence. In so far as the second alleged accusation is concerned, at that time none of the petitioners was present and Mst. Kanwal Rabbani had only taken oath on Holy Qur'an to show her innocence. It is worth mentioning that according to the statement of witness Muhammad Yasin the second allegation was also made by her husband Abid Aziz whereas he is not an accused in the case.
7. From the aforesaid paragraph we can safely conclude that petitioner No,3 Mst. Abida Aziz had not made any accusation of Zina against the complainant, while the husband Abid Aziz has not been cited as an accused. Also there was only one witness present at the time of first alleged accusation and she was not examined during the preliminary inquiry. So far as the second alleged accusation is concerned there is also only one witness while one of the accusers has not been made an accused person.
8. The complaint discloses that the second accusation was made on 26-8-1996 whereas the complaint was drafted on 7-5-1996 and was presented to the learned Magistrate on 15-5-1996. The learned counsel for the complainant conceded that this was a misprint and actually second accusation had been made on 26-4-1996.
9. On the contrary the petitioners have mentioned in their petition that they had never levelled any such charge against the complainant and that they had never stated that the daughter born to her was illegitimate. They have owned the daughter as having been born from their son during the wedlock.
10. The first alleged accusation was made on 8-9-1995 about 8 months before the filing of the complaint whereas the complainant thought fit to make oath on 26-4-1996 and then second alleged accusation was made. It is interesting to note that she was divorced on 14-4-1996. The complainant kept quiet after the first occasion for more than 8 months. This shows that this complaint was filed as a counter-blast to the divorce and to cover the delay the second occasion was falsely invented. There was no justification for taking oath after the divorce.
11. It shall be seen that the complainant had not filed any summary of evidence in proof of the prosecution case alongwith her complaint as required under subsection (2) of section 265-C of the Cr.P.C. And there was no evidence available on the record about the first alleged accusation, while the evidence with regard to the second alleged accusation was very vague as it did not disclose any date, time and place of the occurrence. Moreover, there is an apparent contradiction in the deposition of complainant and her witness during inquiry about the presence of all accused at the time of levelling the charge.
12. No doubt no person can be prevented from going to a Court but it is the duty of the Court to see that no attempt is made to abuse the process of the Court and the matter appears to be genuine and having actually taken place. The Courts would not allow the abuse of their process.
13. Taking into consideration all the aforesaid circumstances I have come to the conclusion that there was not at all any sufficient material before the Court to order the issuance of process against the petitioners. Actually the complaint tantamounted to require the Court to issue process without any foundation whatsoever and it was a gross misuse for the process of the Court.
14. It is to be noted that to prove a charge of Qazf, at least 2 Muslim adult male witnesses are required under clause (c) of section 6 of the Ordinance, whereas only Mst. Walayat Begum has been mentioned in the complaint as a witness of first accusation but she was not produced during the preliminary inquiry. In so far as the accusation on the second occasion is concerned, the statement of the complainant and her witness are at variance about the presence of all the accused. It was also doubtful whether the charge could be effectively proved beyond any reasonable doubt.
15. In such view of the matter I would accept this petition and order the abashment of proceedings pending before the learned Additional Sessions Judge, Gujrat and also cancel the process issued by the Court.