ZAFAR IQBAL Versus ZAREENA BIBI

SPED AFZAL HAIDER, J .--- Appellant Zafar Iqbal has through this appeal challenged the judgment dated 13-11-2006 delivered by learned Additional Sessions Judge, Gujranwala whereby he was convicted under section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and sentenced to two years rigorous imprisonment with fine of Rs.1,000 or in default whereof to further undergo one month simple imprisonment.

2. The prosecution case in brief is that complainant Mst. Zarina Bibi P.W. filed a private complaint dated 8-2-2005, Exh.P.A., under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 wherein she stated that Zafar Iqbal accused had divorced her on 8-5-2003 whereafter she filed a suit for recovery of dower as well as maintenance allowance. The accused, after putting in appearance before the Family Court, filed a written statement as well as a few applications. In one application the accused alleged that the minor female baby namely Zainab aged 1 year was illegitimate child thereby levelling imputation of Zina against her with intention to harm her reputation and to hurt her feelings. The accused also filed an application before the Family Court with prayer that DNA test of the minor Zainab be obtained through Court in order to ascertain the legitimacy of the minor baby. The complainant filed a detailed written reply to the said application. The complainant inter alia urged that since the accused was paying the monthly maintenance allowance of his minor daughter so the application for DNA test was mis-concerned and was liable to be dismissed. However the accused withdrew his application from the Family Court, Gujranwala meaning thereby that he acknowledged the paternity of the minor daughter. In this way, it was asserted by the complainant that the accused notwithstanding withdrawal of offending application had committed an offence of Qazf. She further stated that the accused levelled false allegation of Zina against her outside the Court premises of Gujranwala on 15-5-2004 in the presence of two witnesses namely Asghar Ali and Muhammad Anwar. The complainant moved an application to the S.H.O. Police Station Civil Lines, Gujranwala for registration of criminal case under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 against the accused but to no avail. Hence she filed the private complaint.

3. The learned trial Court after recording preliminary statement of the complainant sent the complaint to the learned Judicial Magistrate, Gujranwala for enquiry under section 202 of the Code of Criminal Procedure. The learned Judicial Magistrate after recording cursory statements of three witnesses submitted inquiry report dated 28-2-2005 to the effect that prima facie offence of Qazf was made out against accused Zafar Iqbal.

4. The learned trial Court charged the accused under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 on 29-4-2005. The accused did not plead guilty and claimed trial.

5. The prosecution produced three witnesses to prove its case. The gist of the deposition of the prosecution witnesses is as follows:---

(i) Mst. Zarina Bibi complainant appeared as P.W.1 and endorsed the contents of her private complaint Exh.P.A.

(ii) Asghar Ali P.W.2 and Muhammad Anwer P.W.3, brothers of the complainant corroborated the statement of complainant P.W.1.

6. The complainant closed the prosecution evidence on 7-10-2006. Thereafter statement of the accused under section 342 of the Code of Criminal Procedure was recorded on 14-10-2006. He denied the charges and stated that:---

"To blackmail, harass and derogate me in the society and also to extort money by way of such-like frivolous and vexatious litigations. The title complaint has been filed by the complainant just to achieve her nefarious designs against me. She in league and collusion with P.Ws., who are her real brothers as well as interested witnesses and also the witnesses at call, filed the present complaint at this belated stage to take the revenge of my second lawful marriage after giving her effective divorce on 8-5-2003."

7. The accused appeared as D.W. 1 and got his statement recorded under section 340(2) of the Code of Criminal Procedure. He also produced Haji Fiaz Ahmed D.W.2 in his defence. The gist of their deposition is as under:---

(i) Zafar Iqbal (accused) appeared as D.W.1 and stated as follows:--

"I was married with the complainant on 23-7-1988 at Fatehpur District Gujrat and she was divorced on 8-5-2003. I have four children from this marriage namely Madasser, Samina, Natasha and Amina. I moved an application for DNA test in the Court of Malik Shabbir Ahmad, Civil Judge/Judge Family Court, Gujranwala. I did not level allegation of Zina against the complainant in the said petition. In written reply to the said application the complainant admitted that Zainab is the daughter of Zafar and Zafar is making .the payment of monthly maintenance. The complainant imposed a condition that if I withdraw my application for DNA test, she will withdraw all her suits, so I withdrew the said petition. This condition of withdrawal of her suits was oral. Zarinas' both brothers are witnesses in all suits; Asghar Ali is a Government Servant. No occurrence as alleged took place on 15-5-2004 and I have not stated anything as alleged. The complainant filed many cases, which are pending in Gujrat, Gujranwala and honourable Lahore High Court, Lahore. The present complaint is false and has been filed to pressurize and blackmail me."

(ii) D.W.2 Haji Fiaz Ahmad deposed that on 15-5-2004 he was present in the Court of Malik Shabbir, Judge Family Court, Gujranwala with Zafar Iqbal and no quarrel took place between the parties in his presence. No occurrence as alleged in the complaint had occurred and Zafar accused is innocent.

8. Learned trial Court after completing the formalities of the trial returned verdict of guilt against the accused. Conviction and sentence ensued as mentioned in opening paragraph of this judgment. Hence, this appeal against the conviction and sentence.

9. I have gone through the record of the case and also perused the statements of witnesses of contending parties as well as the statement of accused. The relevant portions of the impugned judgment have been considered.

10. The reasons that prevailed upon the learned trial Court to convict the appellant are contained in paragraph 5 of the impugned judgment which is reproduced as follows:---

"So far written accusation of Zina is concerned accused has stated as D.W.1 that he moved an application for DNA test in the Court of Malik Shabbir Ahmad, Judge Family Court, Gujranwala. That he did not level any allegation of Zina against the complainant .in the said petition. That the complainant imposed a condition that if he withdraws his application for DNA test, she will withdraw all the suits, so he withdrew the application for DNA test. The said agreement was oral. So it is admitted by the accused that he moved an application for DNA test during the pendency of a suit between the parties before the Judge Family Court, Gujranwala. The application is on file as Exh.P.C. It is stated in the application that he has divorced Mst. Zarina and has not performed conjugal obligations for 1-1/4 years; so it is necessary to determine the paternity of child Zainab Bibi through DNA test. It clearly amounts to levelling allegation of Zina against the mother of child. It is, therefore, proved from the above discussed evidence that Qazf liable to Taazir has been committed by the accused."

11. I have considered the case and have also heard the appellant as well as the complainant in person part from the arguments advanced by the learned counsel for the opposing parties.

12. Appellant is present in Court. He has expressed apology in open Court and has repented for having made unintended remarks in the application for DNA test which he had formally withdrawn. He has stated that he sent his sister and brother to the complainant only last evening after this case had been adjourned on 27-7-2009. They had expressed apology. Learned counsel for the appellant has vehemently stressed that if the latter is sent to prison again he will not be in a position to maintain his children including the 5th child who is in the custody of the complainant. He, being the solitary bread-winner of the family, will not be able to cater to the daily requirements of the four children who are in his custody. The appellant is a driver and earns his livelihood on the basis of daily wages. He has already spent approximately six months in jail which is almost one fourth of the sentence awarded to him.

13. Learned counsel for the complainant however supported the conviction and sentence. The complainant was not prepared to accept apology tendered by the appellant. The fact that the appellant had expressed remorse and sought forgiveness was rejected by her with disdain. The appellant was willing even to a reasonable increase in the monthly maintenance allowance of the minor in custody of the complainant but this offer was also dismissed with contempt.

14. This attitude on the part of complainant cannot be appreciated. Ayat 114 of Sura 11 of the Holy Qur'an proclaims in very clear terms:---

(a), "Surely, good deeds drive away the (effect of) bad things. This is a reminder for those who would remember".

It is worthy of note that Tauba is not only a fundamental stone of the social life of Muslims but is a remarkable concept given by Holy Qur'an ;

(b) Allah Almighty has, in Ayat 3 Sura 110, described Himself as Oft-returning to mercy. Not only that but Holy Qur'an in Ayat 222 of Sura 2, declares that Allah loves those who seek forgiveness, pardon and promise to behave in future. The central theme in Tauba is repentance on these past wrongs and matters B ich are deemed reprehensible in the domain of religion. It is therefore important that we consider carefully the meaning and scope of the term Tauba for the day to day affairs of human life. Ayat 31 Sura 24 proclaims:---

" And turn to Allah all of you, O believers! so that you may be successful" .

This Injunction of Qur'an makes Tauba almost obligatory for the believing man and woman.

(c) According to a tradition of the Holy Prophet (p.b.u.h.):---

Tauba erases the bad/evil effects of the sinful acts. Allah likes those who seek forgiveness;

(d) Ayaat 70,71 Sura 25 is still another reference to impress the significance of seeking forgiveness---Tauba---the Ayat says:---

The Chastisement shall be done bled on the day of resurrection, and he shall abide therein in or basement; Except him who repents and believes and does a good deed; so these are they of whom Allah changes the evil deeds to good ones; and Allah is Forgiving, Merciful .

Ayat 82 Sura 20 may also be perused:---

And most surely I am most Forgiving to him ho repents and believes and does good, thon continues to follow the right direction .

(e) Before concluding let us ponder over Ayat 31 Sura 4:---

If you shun the basic forbidden items we will (in return) do away with your evil inclinations and canse you to enter an honourable place of entering .

(f) Sura Nur i.e. Sura 24 which deals with false accusation of adultery and the punishment thereof makes things easy for those who repent as is clear from Ayaat 4 and 5:---

And those who accuse free women then do not bring four witnesses, flog them by giving eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgress ;

Except those who repent after this and act aright, for Surely Allah is Forgiving, Merciful .

Most certainly the appellant has tendered apology in the open Court as well. I do not consider myself qualified to reject the apology particularly because the appellant had, during the pendency of the proceedings before the Family Court, withdrawn his application and the matter had ended there because the appellant continued pay maintenance allowance to his minor daughter which was being accepted by the complainant till date.

15. In this view of the matter I have no option but to accept apology because Sura Nur i.e. Sura 24, is the only provision to which deal with false accusation of adultery and the punishment thereof, makes things easy for those who after committing the offence of false accusation, repent as is clear from Ayaat 4 and 5:---

" And those who accuse free women then do not bring four witnesses, flog them by giving eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgressors ;

Except those who repent after this and act aright, for Surely Allah is Forgiving, Merciful ."

There is no complaint that after May, 2004 the appellant ever state anything about the character of the complainant. It might as well be added that the learned trial Court did not believe the allegation of complainant that the appellant levelled oral accusation of Zina against the complainant inside and outside the Court. Most certainly the appellant has, additionally expressed remorse and tendered apology in the open Court as well. I do not consider myself qualified to reject the apology under the given circumstances of the case.

16. In this view of what has been stated 'above I accept the apology of the appellant tendered in open Court. He had withdrawn the accusation during the pendency of suit. His conduct thereafter for the last five years was never challenged. His re-assurance that he would continue supporting the minor in the custody of appellant is another factor to recommend his case. Accordingly the sentence to one already undergone will meet the ends of justice. The amount of fine of Rs.1000 be entrusted with the Reader of the Court for depositing the same in the State Treasury. The appellant is on bail. His surety is relieved of the liability of bonds. Criminal Appeal No.295/L of 2006 is disposed of in above terms.

N.H.Q./67/FSC Sentence reduced.