1. MAULANA MUHAMAMD TAQI USMANI, J.---The petitioner Jamil Hussain Shah seeks leave to appeal against, the judgment of Federal Shariat court dated 2-4-1996 whereby the order of his acquittal recorded by the learned Additional Session Judge, Multan, dated 27-2-1994, was reversed and he was convicted under section 11 of the Offence of Qazf (Enforcement of had) Ordinance, 1979 (hereinafter referred to as the "Ordinance") and was sentenced to one year R.1 with 30 stripes and a fine of Rs.50,000, or in the case of default in payment of fine to further R.I. For six months.
2. The allegation against the petitioner is that he has levelled a false charge of Zina against Mst.
3. Nuzhat Jabeen, the respondent No.2. The allegation is based on a writ petition filed by the petitioner before the High Court, Multan Bench, on 28-1-1991 against the S.P., Vehari, S.H.O., Daniwal and one Almas, brother of Nuzhat Jabeen. He stated therein that S.P., Vihari is a man of bad repute. He oftenly comes to the house of Almas where he commits Zina with his sister. The petitioner and one Sh. Mumtaz Ali objected to the activities of S.P., Vehari and protested with Almas, whereupon S.F., Vihari directed S.H.O., Daniwat to harass the petitioner. The High Court Multan Bench heard the matter and called for a report from D.I.G.. Police, Multan, vide its letter dates 28-8-1991. The said D.I.`G., Police after conducting an enquiry reported that Jamil Hussain Shah, the petitioner, could not substantiate or prove the allegation of Zina levelled by him. The High Court by allowing all the concerned parties to take up any proceedings of remedies which are available to them under the law, disposed of the said writ petition by the order dated 7-9-1991.
4. Mst. Nuzhat Jabeen feeling aggrieved by the allegation made in the said writ petition as well as by repetition of the same by the petitioner during the proceedings of the enquiry before the D.I.G., Police Multan, and subsequently by publishing of the same allegation in Daily Jang and Daily Nawa-i-Waqt of 5-9-1991 filed a complaint before the learned Sessions Judge, Multan on 4-2-1992.
5. The charge was framed against the petitioner under section 7 of the Ordinance but the learned Session Judge after going through the evidences on record came to the conclusion that the charge of Qazf was not proved against the, petitioner. Therefore, he acquitted the petitioner alongwith other co-accused.
6. Mst. Nuzhat Jabeen preferred an appeal before the Federal Shariat Court. The learned Judges of the Federal Shariat Court after thorough examination of the evidence found that the acquittal of Sh. Mumtaz Ali was justified while the offence of Qazf is proved against the petitioner Sh. Jamil Hussain Shah, therefore, he was sentenced as aforesaid, hence this petition for special leave to appeal.
7. We have heard Sh. Khizar Hayat, Advocate, the learned counsel for the petitioner, and have gone through the record with his assistance. The learned counsel vehemently contended that the petitioner never intended to harm the reputation of Mst. Nuzhat Jabeen. The thrust of his writ petition was against S.P., Vihari, therefore, Mst. Nuzhat Jabeen had no locus standi against the petitioner. It is the same argument which weighed with the learned Additional Sessions Judge while acquitting the petitioner. He has based his judgment on the definition of Qazf as given in section 3 of the Ordinance. According to the interpretation of the learned Additional Sessions Judge it is necessary for the constitution of the offence of Qazf that imputation of Zina concerning any person is intended to harm the reputation or hurt the feelings of such person. In the case in hand the initial grievance of the petitioner was against S.P., Vehari or Almas, brother of Nuzhat Jabeen but they did not come forward against the petitioner for the proceedings of Qazf.
8. He did not intend to harm the reputation of Mst. Nuzhat Jabeen, therefore, the offence of Qazf was not made out against him.
9. We do not agree with this line of argument. Zina with consent is a bilateral at and if it is attributed to to particular persons, both of them can claim to be victims of offence of Qazf even though the initial complaint is only against any one of them. Similarly it is not necessary for the offence of Qazf that the imputation is actually intended to harm the reputation of a person. Section 3 of Qazf defines the offence as follows: " Qazf.--Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes as 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' .
10. "
11. It is clear from this definition that even if the imputer does not actually intend to harm the reputation of .a person but he has reasons to believe that such imputation will harm the reputation or hurt the feelings of that person he does fall within the ambit of definition of ' Qazf' .
12. The learned counsel then argued that the petitioner did not name Mst. Nuzhat Jabeen in his writ petition before the High Court, he just mentioned that the S.P., Vehari had been committing Zina with the sister of Almas having four sisters, imputation cannot be attributed to Nuzhat only. We have found that the same point has been taken before the Federal Shariat Court and has been dealt with satisfactorily in the impugned judgment. It is proved on the record that the petitioner has named the respondent No.2 Mst. Nuzhat Jabeen in his statement Exh.P.A and the imputation was so specific that she was dismissed from her service as a teacher as deposed by her and not rebutted by the petitioner.
13. The third point raised by the learned counsel is that the case in hand falls within the Second Exception of section 3 of the Ordinance where it is provided that "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". According to the learned counsel, the petitioner has preferred the accusation of ' Zina' in good faith to a lawful authority when he filed a writ petition in the High Court, therefore, having protection of the Second Exception, his at does not fall within the definition of ' Qazf' .
14. This argument to is without force because the Second Exception itself is subject to three Exceptions which are spelled out as sub-divisions (a), (b) and (c). In order to understand the law properly it will be pertinent to reproduce the whole language of the Second Exception: Second Exception: Accusation preferred in good faith to authorized 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 subject-matter of accusation:--
(a) a complainant makes an accusation of ' Zina' against another person in a Court, but fails to produce four witnesses in support thereof before the Court;
(b) according to the finding of the Court, a witness has given false evidence of the commission of '
15. Zina-bil-labr'.;
(c) according to the finding of the Court, a complainant has made a false accusation of ' Zina' or '
16. Zina-bil-Jabr' .
17. The words "save in the cases hereinafter mentioned" are to the effect that the cases falling under sub-divisions (a), (b) and (c) cannot benefit from the protection given by the Second Exception meaning thereby that if a case falls within the ambit of either of the three situations mentioned in (a), (b) and (c) will make out the offense of Qazf even if the accusation is preferred to a person having lawful authority over the person against whom the accusation is made. The instant case falls within the situation (a) because the accusation of ' Zina' has been-made by the petitioner against Nuzhat Jabeen in a Court of law but was not substantiated not only by four witnesses but also by any piece of evidence whatsoever.
18. The learned counsel further argued that the petitioner has not been held a liar by any Court, therefore, he should not have been punished for 'Qazf'. This contention is also without merit because if a case falls within the situation (a) under the Second Exception it is not necessary for the establishment of offence of 'Qazf' that the accused is held a liar by any Court of law rather it is sufficient that he is not able to produce four witnesses in support of his accusation. It is only in the cases of the situations (b) and (c) that the law has made it necessary for establishing of 'Qazf' that the accused is held a liar by the Court.
19. In view of the above discussion we have found that there is no defect in the judgment delivered by the Federal Shariat Court, we, therefore, uphold the same and this petition having no force is hereby dismissed.