MASHKOOR AHMED Versus AZIZ-UR-REHMAN KHAN
Appellant has assailed an order passed by the Court of Additional Sessions Judge, Islamabad on 30-6-1996 whereby a direct complaint filed the appellant under Article 8 of the Offence of Qazf (Enforcement of Hadd)) Ordinance, 1979 hereinafter referred to as the said Ordinance, has been dismissed in limine.
2. Succinctly, the facts are that respondent No. l (Aziz-ur-Rehman Khan) lodged an F.I.R. No.91 of 1994 under Articles 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 506, P.P.C. at Police Station Abpara, Islamabad on 6-6-1994 with allegations that the appellant, in connivance with his two brothers and wife, called his daughter Yasmin, a student of 8th class, on 23-1-1994 inside his house which was in the neighbourhood on the pretext of the illness of his child. Then the door was bolted, and she was forced to sign and thumb-mark at various places on many papers on the point of revolver. After that he remained committing forcible excesses with his minor daughter Yasmin in active cooperation with his wife. With much difficulty, the victim girl got rid from the clutches of the offenders, reached her house and told the story. The matter was reported to the police, but due to the immense influence of the appellant accused, he could not succeed. However the complainant remained trying to get the case lodged and finally on 4-6-1994 the appellant accused came to his house accompanied by some armed persons and tried to abduct his daughter due to timely intervention of some relatives he went away threatening that it case she was not handed over to him, he shall resort to arms and abduct the victim girl. Even on the date of the lodgement of F.I.R. i.e. 6-6-1994 the earlier threats were repeated. The said F.I.R. also alleged that the appellant accused is dangerous person. He entices away the minor children and creates a drama o indulging into fake marriages with them. Later on sales them into the tribal areas.
It appears from the report of the Investigating Agency under section 173, Cr.P.C. and orders thereof passed by Sub-divisional Magistrate Islamabad on 25-9-1994 that the allegations could not be proved and in result the abovementioned F.I.R. was discharged, cancelled. Consequently, Appellant and his alleged accomplices were not challaned.
3. A complaint under Article 8 of the said Ordinance was filed by the p appellant in the Court of Ilaqa Magistrate Islamabad, but on point of jurisdiction it has been disposed of by the Court of Additional Sessions Judge, Islamabad through the order which has been impugned before this Court.
4. I have heard the counsel for appellant, respondent and State. The learned counsel for appellant has contended that the parties are Hanafis, and therefore personal law of Hanafis regarding the meaning and scope of Qazf is applicable; that it appears from the records that the alleged victim was adult and had married the appellant with her own free will and, therefore, the appellant was "Muhsan" within the meaning of Article 2 (d) (i) of the Zina (Enforcement of Hudood) Ordinance, 1979 and imputation of Zina against him on 6-6-1994 constituted an offence of Qazf; that reliance is placed on AIR 1923 All 167, 1992 SCMR 638.
The counsel for respondent No. 1 has mostly relied on principles laid in, inter alia, 1984 SCMR 123, NLR 1993 SD 684, NLR 1988 SD 448, PLD 1985 FSC 384, 1989 PCr.LJ 1875 and has contended that the respondent No.l is innocent and the impugned order may be upheld. The learned counsel for State has argued that the appellant has not come with clean hands and law must not help him to punish a father who tried to save his minor daughter from the clutches of an already a married and very clever person. He has supported impugned order and has relied upon PLD 1985 FSC 384.
5. At the outset, it is clear from ground No.4 of suit for jactitation of marriage filed before the Judge, Family Court, Islamabad on 3-2-1994 by the alleged victim Mst. Yasmin Aziz against the present appellant that on the date of filing the said suit she was claiming both the minority and the virginity and that she had signed paper under the fear of death and her alleged marriage is a fraud and forgery. In conflict to her claim of virginity on 3-2-1994, in her statement under section 164, Cr.P.C. made before the Court of Assistant Commissioner City Islamabad she was claiming that she was raped at least one month prior to the filing of this suit for jactitation of marriage. This conduct indicates that the victim is not coming to the Courts with clean hands. She is trying to hoodwink *the Courts to move the law according to her own whishes and whims. From these two conflicting versions, it appears that she, being a teenager, is being tutored from her elders. Even otherwise, in the discharged F.I.R. No.91 of 1994 police station Abpara, the respondent has alleged that his minor daughter Mst. Yasmin Aziz was made to thumb-mark and sign on certain papers and then she was subjected to forced excesses (JABRI ZIADATI) immediately after the signatures etc. on 23-1-1994. In the same F.I.R. it has also been alleged that the appellant is a habitual offender of enticing away minor girls, indulging into fake marriages with them and selling them into the tribal areas. All these allegations do prove beyond all the reasonable doubts that the imputations of the Zina concerning appellant by words spoken and made before the police at the times of the lodgement of F.I.R. No.91 of 1994 at Police Station Abpara with intention to harm him and his reputation have been made by the complainant/respondent No. 1.
6. The learned counsel for respondent No. l has contended vehemently that his case falls within the first and second exception to Article 3 of the said Ordinance. Article 3 of the said Ordinance reads: --
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' .
Explanation 1. It may amount to 'qazf' to impute 'zina' to a deceased person, if the imputation would harm the reputation, or hurt the feelings, of that person if living, and is harmful to the feelings of his family or other near relatives.
Explanation 2. An imputation in the form of an alternative or expressed ironically, may amount to ' qazf'.
First exception (imputation of truth which public good requires to be made or published). It is not 'qazf' to impute 'zina' to any person if the imputation be true and made or published for the public good. Whether or not it is for the public good is a question of fact.
Second exception (Accusation preferred in good faith to authorised 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 the 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 ' Zina-bil-Jabr' .
(c) according to the finding of the Court, a complainant has made a false accusation of 'Zina' or ' Zina-bil-Jabr' .
According to the learned counsel, the complainant/respondent No. 1 made an accusation of forcible excesses (JABRI ZIADATI) in good faith against appellant before the police station who had jurisdiction and lawful authority over the accused/appellant with respect to the subject-matter of accusation and factually the complainant/respondent No. 1 honestly believed that his minor daughter was subjected to excesses on 23-1-1994 by the appellant. According to him the word zina has not been used. Therefore, the word (JABRI ZIADATI) (forcible excesses) may mean any act other than zina like mishandling, embracing, kissing etc. I would have considered this contention to be correct, had the rest of F.I.R. coupled with the clear statement of victim under section 164, Cr.P.C. not clarified that the usage of the word forcible excesses (JABRI ZIADATI) is actually meaning, in the form of alternative, Zina-bil-Jabr and is. falling within the meaning of Explanation 2 to Article 3 of the said Ordinance which reads:--
"An imputation in the form of an alternative or expressed ironically, may amount to 'qazf'.
The words used in statement under section 164, Cr.P.C. are:--
Under these circumstances, I am not persuaded by this contention and do hold that the word forcible excesses (JABRI ZIADATI) has been used in F. I. R. as an alternative for cohabitation caused by the appellant with the victim girl deceitfully inducing a belief of lawful marriage and within the meaning of Article 15 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. This is clear from the wording of that part of F.I.R. which is indicative that the victim was forced to sign and thumb-mark certain papers. Naturally then these papers concerned option of free-will, Nikahnama etc. Even otherwise, statement of the victim, under section 161, Cr.P.C. is clarifying the matter further to the extent that respondent No. 1, her father, must have been told the same story and at the time of the lodging F.I.R. be must have preferred in good faith an accusation of zina against the appellant to the police having lawful authority over the appellant with respect to the subject-matter of the accusation. The victim girl is stating in her 161, Cr.P.C. statement as under:---
6. The learned counsel for appellant has relied on the principles set in 1992 SCMR 638 and AIR 1923 All 167. In the first case, Shariat Appellate Bench of the Supreme Court of Pakistan has found respondent Abdullah liable to hadd under Article 7 of the said Ordinance because he was falling within the mischief of the provisions of clauses (a) and (c) to second exception of Article (3) of the said Ordinance. The present case is totally distinguishable from the cited one as at the earlier stage, the F.I.R. was discharged and it was never sent to any Court of law. Respondent No. 1 has neither made an accusation of Zina against appellant in a Court, nor the Court has found him making a false accusation of Zina-bil-Jabr. So far as the second citation from Indian jurisdiction is concerned, the principle on which reliance has been placed is heading (b) which reads:--
"Punishment for defamation. However, defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.'
This citation is misconceived as the said Ordinance is firstly totally different in its content and spirit in comparison to section 499 and 500, P.P.C., secondly that the provisions of second exception to Article (3) of the said Ordinance are differently laid and have their source in verse No.4 of the Sura Noor of the Holy Quran whereas P.P.C. as a whole is of human origin with Anglo-Saxon background and thirdly that according to Article 19 of the said Ordinance it shall have effect notwithstanding any thing contained in any other law for the time being in force.
7. The upshot of the discussion is that for the reasons discussed above, the impugned order is upheld and the appeal is dismissed.
H.B.T./1163/FSC Appeal dismissed.