1988 PCRLJ 859

ABDULLAH Versus THE STATE AND 2 OTHERS

Citation1988 PCRLJ 859

CourtFederal Shariat Court

Case No.Criminal Appeal No.334/L and Criminal Revision No. 92/1, of 1987

Judge(s)Fakharuddin H. Shaikh and Kamal Mustafa Bokhari

Authored byFakhruddin H. Shaikh

ResultAppeal accepted

FAKHRUDDIN H. SHAIKH, J .--The above appeal and the revision petition relate to the same incident, therefore, they have been heard together and shall be decided by this Judgment. Appellant Abdullah had filed a report (being FIR No.118 in Police Station Rajana, District Faisalabad) on 21-7-1981, alleging that Abdur Rehman and Muhammad Masood have illicit connection with one Mst. Robina, daughter of Muhammad Saleem, who had become pregnant illegitimately. It was further alleged that abortion was effected with the help `0fr' relations of Masood and the dead body (foetus) was brought to him for the purpose of burial, but he had refused to help her instead he had gone to the police station and lodged report. On this FIR six persons were sent up for trial before Sessions Judge, Toba Tek Singh. These six persons were Mst. Kalsoom, Muhammad Masood alias Sooda (petitioner in Criminal Revision No.' 92/1, of,1987). Mst. Robina, Mst. Mamoona Kausar, Mst. Tasneem Kausar and Abdur Rehman.

2. The charge against Masood and Mst. Robina was under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance), while case against the other persons was of causing abortion of the child punishable under section 318, P.P.C. By his judgment, dated 26-3-1984 the learned Sessions Judge, Toba Tek Singh, acquitted the above six persons, although he held that Mst. Robina had become pregnant illegitimately. In spite of this finding no conviction was recorded even against Mst. Robina.

3. After the acquittal of the above persons, petitioner Muhammad Masood moved an application against Abdullah, one Abdur Rehman and Muhammad Munir under section 7 of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the Qazf Ordinance). Abdul Rehman and Muhammad Munir were joined as accused by Muhammad Masood on the ground that they had appeared as witnesses in support of the F.I.R. lodged by appellant Abdullah. This case was tried by Khan Muhammad Arshad Khan, Additional Sessions Judge, Toba Tek Singh, who convicted appellant Abdullah (in Appeal No. 334/1, of 1987) under section 11 of the Qazf Ordinance and sent ed him to suffer R.I. for one year, whipping numbering ten stripes and to pay fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for three months. Appellant Abdullah has challenged this judgment of Additional Sessions Judge, which is dated 11-11-1987, in Criminal Appeal No. 334/1, of 1987.

4. The learned trial Court had acquitted Abdul Rehman and Muhammad Munir under section 265-K, Cr.P.C. of the charge of Qazf. Petitioner Muhammad Masood is aggrieved only so far as acquittal of Muhammad Munir is concerned and, therefore, he has filed Criminal Revision Petition No. 92/1, of 1987.

5. We have gone through the record and perused the judgment of the learned Sessions Judge, dated 26-3-1984, wherein it was actually held by him that Mst. Robina had become pregnant illegitimately and that abortion was caused. Appellant Abdullah had dope nothing except to go to the police station and lodge the report about the illegitimate conception and abortion. He was chowkidar of the village and, therefore, there was nothing wrong if he had reported this matter to the police. He further stated in the F.I.R. that it was rumoured in the village that Mst. Robina was having illegal connection with one Masood as a result of which the illegitimate conception had taken place. This Abdullah had also appeared as witness in the case against Masood and others as P. W .

3. A copy of his statement has been produced as Exh. P.A. at the trial of appellant Abdullah under the Qazf Ordinance. In this statement appellant Abdullah had nowhere stated that Masood committed Zina with Mst. Robina. It has been held in the case of Muhammad Ashraf v. The State P L D 1981 F S C 323 that allegation of illicit relation made by a person against another, does not amount to allegation of Zina and as such would not constitute an offence under the Qazf Ordinance. It has further been held in the case of Muhammad Shabbir v. The State P L D 1985 FSC 384 by a Division Bench of this Court that simple allegation of Zina would not amount to an offence under the Qazf Ordinance unless mala fide intention is proved. We find that both the above decisions are fully attracted to the facts of the present case. Appellant Abdullah did not specifically say that Masood had illicit connection with Mst. Robina. He simply stated that he had heard a rumour in the villlage that Mst. Robina had illicit connection with Masood. There was no mala fide intention on the part of appellant Abdullah. He simply reported the fact of illegitimate conception of Mst. Robina and the factum of abortion having been caused, to the police. He was a chowkidar of the village, therefore, he had only performed his duty in reporting the matter to the police. We are, therefore, of the view that the conduct of appellant Abdullah is covered by second exception to section 3 of the Qazf Ordinance. Consequently Appeal No. 334/1, of 1987 of Abdullah is allowed, his conviction and sentences are set aside, and he is acquitted of the offence he has been charged with. He is on bail. His bail bond stands discharged.

6. So far as Criminal Revision No. 92/1, of 1987 is concerned, the grievance of petitioner Muhammad Masood is that Muhammad Munir has been wrongly acquitted by the trial Court under section 265-K. Cr.P.C. This Munir was a prosecution witness in the Zina case before Sessions Judge, Toba Tek Singh. He had appeared as a witness in support of the F.I.R. lodged by appellant Abdullah. Copy of statement of Muhammad Munir has been produced at the trial as Exh. P.C. His evidence was about extra-judicial confession alleged to have been made by petitioner Muhammad Masood, that he (Masood) was carrying on with Mst. Robina as a result of which she had become pregnant and that miscarriage has been caused in his house. The above statement of Muhammad Munir would not constitute 'Qazf' as already held in respect of appellant Abdullah. We, therefore, find that Muhammad Munir was rightly acquitted under section 265-K, Cr.P.C. Consequently Criminal Revision Petition No. 92/1, of 1987 is dismissed.

S.A./389/F.Sh. Appeal accepted.