MUHAMMAD SAFDAR SATTI Versus Mst. AASIA KHATOON

JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).‑ This appeal by leave of the Court is directed against the judgment, dated 11‑2‑1999 of the learned Federal Shariat Court, Islamabad passed in Criminal Revision No. 11/I of 1998, whereby revision filed by respondent No.1 was allowed.

2. Brief facts of the case as stated are, that appellant and respondent No. 1, namely Mst. Aasia Khatoon were married on 21‑10‑1988 and used to live as husband and wife. It was in the year, 1992 their relations became strained and culminated in 'Talaq'. The appellant vide notice, dated 4‑9‑1992 pronounced final `Talaq' stating inter alia, that respondent Mst. Aasia Khatoon had indulged in nefarious activities and had also given birth to illegitimate child namely, Usama Safdar. Thereafter appellant filed a suit for custody of the first son namely, Aneees Safdar claimed to be from his wedlock wherein he also affirmed having pronounced `Talaq' to respondent‑Mst. Aasia Khatoon. Respondent No.1 filed a complaint under sections 7/11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as "the Ordinance") against appellant No.1‑Muhammad Safdar Satti which came up for hearing before the learned Additional Sessions Judge, Rawalpindi, Charge was framed against both the, appellants under sections 7/11 of the Ordinance on 3‑10‑1997. During trial appellant Muhammad Safdar Satti preferred an application before the trial Court that proceedings be initiated under section 14 of the Ordinance for Lian against Mst. Aasia Khatoon. This application was accepted and directions were issued for initiation of proceedings for Lian under section 1 ,4 of the Ordinance. Feeling aggrieved Respondent No.1 filed Criminal Revision No. 11/I of 1999 which was allowed vide impugned judgment. Said‑order was assailed by the appellant through Criminal Petition No.14(S) of 1999 in which leave to appeal was granted on 2‑1‑2001 to consider :‑ ‑

"(1) If the charge of Zina is leveled against the wife by her husband along with the divorce, will it attract section 14 of the Qazf Ordinance for undertaking the proceeding of Lian;

(2) If the proceeding of Lian is not applicable in the above situation, can the husband be tried for the offence of Qazf" .

3. We have heard Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for the appellants, Malik Rab Nawaz Noon, learned Sr. Advocate Supreme Court for respondent No.1 and Ms. Afshan Ghazanfar, learned A.A.‑G. Punjab on behalf of State and have also given anxious thought to the contentions made at the bar and also gone through the proceedings of the case in minute particulars.

4. Learned counsel for the appellant vehemently contended that provisions of section 14 of the Ordinance has not been appreciated by the learned Federal Shariat Court in its true perspective which resulted in serious miscarriage of justice. Hence the same is not sustainable in law.

5. On the other hand learned counsel for respondent No.1 defended the impugned judgment and in support of his contentions he referred to the case of Haji Bakhtiar Said Muhammad v. Mst. Dure‑e‑Shahwar and another PLD 1986 FSC 187; Haji Bakhtiar Said Muhammad v. Mst. Dur‑e‑Shahwar Begum and another 1989 SCMR 428; Manzoor Hussain v. Zahoor Ahmed and 4 others 1992 SCMR 1191; and Capt. Abdul Ghafoor v. Federation of Pakistan through M/O Law, Justice and Parliamentary Affairs, Islamabad 1992 MLD 2326.

6. As regards the issue of Lian the Holy Qur'an states as follows :‑ ‑

"And for those who launch‑ a charge (of Zina) against their wives and have no evidence (in their) support but their own, their solitary evidence (can be accepted) if they have witnessed four times (taking Oath) by Allah that they are solemnly telling the truth. The Holy Qur'an Part 18 Surah Al‑Noor S.24:6."

As per Book "Durr‑e‑Mukhtar" (Ghayatul Owtar) a well‑known collection of Hanfi Fiqah translated by Moulvi Khurram Ali completed by Maulana Muhammad Ahsan Siddiqui Nanatawi (Durr‑e‑Mukhtar V. 2 Page 202):‑‑

From the perusal of above it becomes clear that at the time of charging against their spouses of unchastity in Lian, the relation between them B should be a relation of husband and wife. For better appreciation, sections 7 and 14 of Offences of Qazf Ordinance are reproduced as under:

"(7) Punishment of Oazf liable to Hadd. ‑‑‑ (1) Whoever commits Qazf liable to Hadd shall be punished with whipping numbering eighty stripes.

(2) After a person has been convicted for the offence of Qazf liable to Hadd, his evidence shall not be admissible in any Court of law.

(3) A punishment awarded under subsection (1) shall not be executed until it has been confirmed by the Court to which an appeal from the Court awarding the punishment lies; and, until the punishment is confirmed and executed, the convict shall, subject to the provisions of the Code of Criminal Procedure, 1898, relating to the grant of bail or suspension of sentence, be dealt with in the same manner as if sentenced to simple imprisonment".

(14) Lian ‑‑ (1) When a husband accuses before a Court his wife who is muhsan within the meaning of section 5, of the Zina and the wife does not accept the accusation as true, the following procedure of Lian shall apply, namely:‑‑

(a) the husband shall say upon oath before the Court: "I swear by Allah the Almighty and say I am surely truthful in my accusation of Zina against my wife (name of wife) and, after he has said so four times, he shall say:" Allah's curse be upon me if I am a liar in my accusation of Zina against my wife (name of wife); and

(b) the wife shall, in reply to the husband's statement made in accordance with clause (a), say upon oath before the Court: "I swear by Allah the Almighty that my husband is surely a liar in his accusation of Zina against me"; and, after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his accusation of Zina against me".

(2) When the procedure specified in subsection (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it.

(3) Where the husband or the wife‑ refuses to go through the procedure specified in subsection (1), he or, as the case may be, she shall be imprisoned until‑

(a) in the case of husband, he has agreed to go through the aforesaid procedure; or

(b) in the case of the wife, she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true.

(4) A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of Zina liable to Hadd under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979".

Section 8 of the Ordinance stipulates that no proceeding under this Ordinance shall be initiated except on a report made to the police or a compliant lodged in Court of law. In the instant case respondent No.1 Mst. Aasia Khatoon has filed complaint against the appellant under section 7/11 of the Ordinance which is pending for trial before trial Court. Learned Federal Shariat Court in the impugned judgment has rightly observed that marriage between appellant Muhammad Safdar Satti and respondent No.1 Mst. Aasia Khatoon has already been dissolved as such taking proceedings under section 14 of the Ordinance would not be appropriate.

7. We are fortified from the Injunctions of Holy Qur'an explained supra that while lodging a charge of Zina against wife or husband, there must exist relationship of husband and wife in between them. Section 14 of the Ordinance is also clear on this aspect of the matter.

8. For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and cogent reasons and is entirely in consonance with the law laid down by this Court. Neither there is any misreading nor non‑reading of the facts and law. Resultantly, instant criminal appeal is dismissed being devoid of force.

N.H.Q./M‑206/S Appeal dismissed.