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Criminal Revision No. 3/L of 1986, decided on 4th November, 1986.

‑‑‑Art. 203‑DD‑‑Criminal Procedure Code (V of 1898), S. 265‑K‑ Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), Ss. 7 & 8‑‑Qazf‑‑Initiation of proceedings‑‑Case registered against present petitioner and others under S. 10 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) found false and cancelled‑‑No charge of Zina against petitioner and Qazf not committed against him‑‑Aggrieved person neither making report to police nor lodging any complaint under provisions of Ordinance VIII of 1979‑‑Proceedings under the Ordinance, held, could not be initiated by person other than person against whom Qazf had been committed‑‑Revision dismissed in circumstances.

Mian Abdus Sattar Najam for Petitioner.

M.S. Baqar for Respondent No. 1.

Syed Muhammad Saqlain for Respondents Nos. 2 to 7.

Auster Ausaf Ali for the State.

Date of hearing: 4th November, 1986.

‑ This revision petition by Muhammad Abdullah son of Muhammad Sharif of Muzaffargarh, under Article 203‑DD of the Constitution of the Islamic Republic of Pakistan is directed against the judgment of the learned Additional Sessions Judge‑I, Muzaffargarh, Camp at Kot Adu, dated 5‑11‑1985 in a case registered under section 7/8 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 vide F.I.R. No. 30, dated 28‑5‑1985 in Police Station Dira Deen Pannah against Syed Hashim Ali Shah and others. By virtue of the impugned judgment the learned trial Court acquitted all the accused of the charge in exercise of his power under section 265‑K, Cr.P.C.

2. The facts of the case briefly stated are that on the report of one Mst. Shamim Mai a case was registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 324/34, P.P.C. vide F.I.R. No. 34. dated 5‑2‑1984 at Police Station Dira Deen Pannah against the complainant and two other accused, namely, Zahir Shah and Zar Gul wherein it was alleged by Mst. Shamim Mai, the alleged victim, that she was subjected to Zina‑bil‑Jabr by Zar Gul, accused while he other accused, namely, Zahir Shah and Muhammad Abdullah, petitioner, had assisted the accused Zar Gul. During the course of investigation, it came to light that there was no truth in the allegations concerning the commission of Zina with her and the case with regard to those allegations was cancelled by Zar Gul, accused was challaned under section 324, P.P.C. for inflicting an injury on the person of Mst. Shamim Mai with a sharp‑edged weapon.

3. The petitioner, Muhammad Abdullah then approached the S.P. Muzaffargarh for the registration of a case against Mst. Shamim Mai and the other respondents of this petition under section 8 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 on the ground that a false charge had been brought against him.

4. It appears that the matter was referred to the prosecution branch for comments. According to the opinion expressed by the said branch no case could be registered under the said provisions of the Ordinance at the instance of Muhammad Abdullah, petitioner as no allegation of Zina had been made against him. However, it appears that in spite of the legal opinion, a case was registered under such provisions of law at the instance of the petitioner under the direction of the Superintendent of Police. After the usual investigation, a complete challan was sent to the Court for trial which was disposed of by the impugned judgment. The concluding para. of the impugned judgment read as under:‑

"It is very much clear from the perusal of the above‑mentioned section 8 that the case could not have been registered at the instance of Muhammad Abdullah who was not an aggrieved party as no allegations of Zina had been levelled against him by the alleged victim Mst. Shamim Mai who is accused in the instant case. Therefore, in view of section 8 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 the instant challan is not maintainable and consequently the accused are acquitted of the allegations under section 265‑K, Cr.P.C:"

5. In the instant case, the petitioner, Muhammad Abdullah, has assailed the finding of the learned trial Judge on the grounds stated therein.

6. We have heard the learned counsel for the parties and have also gone through the record and the relevant law on the subject with their assistance.

7. The learned counsel for the petitioner contended that the conclusion of the learned trial Judge by holding that only that person shall be an aggrieved person against whom there is a direct allegation of Zina is misconceived as the learned trial Court has failed to take notice of the provisions of section 16 of the Ordinance where section 34, P.P.C. has been made applicable in respect of the offences in the Ordinance. He submitted that in the F.I.R. lodged by Mst. Shamim Mai an active role has been assigned to the petitioner in prosecution of the object of Zina with respondent No. 5 and as such provisions of section 8 of the Ordinance were, therefore, not a bar to such proceedings at the instant of the petitioner.

8. The learned counsel for the respondent on the other hand submitted that the provisions of section 16 of the Ordinance and for that matter section 34, P.P.C. were not attracted to the peculiar facts of the case for the reason that the charge of Zina was against one Gul Zar, accused and against no one else. He submitted that it is now well‑settled that section 34, P.P.C. is only a rule of evidence and does not constitute a substantive offence and a clear charge of Zina having been brought against a different individual, that charge cannot be extended to the petitioner against whom in that case there was certain allegations but other than the imputation of Zina.

9. The term Zina' has been defined under section 4 of Ordinance VII of 1979 in the following words:‑

"A man and a woman are said to commit Zina' if they wilfully have sexual intercourse without being validly married to each other:'

Explanation:‑ Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina.

10. Perusal of the above provision clearly shows that to establish the charge of Zina, it is necessary to show that a man and woman without being validly married to each other have wilfully sexual intercourse.

"11. 'Qazf' has been defined in section 3 of the said Ordinance as under:‑

Whoever by words either spoken or intended to be read, or by signs or by visible representations makes or publishes an imputation of Zina concerning arty 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.

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12. In Zina cases the mere failure of the prosecution case would not automatically establish the charge of Qazf against the complainant or the witnesses appearing in that case unless it is further proved that the complainant/witnesses made that imputation of Zina with the intention to harm the reputation or hurt the feelings of such person. In the instant case there are no imputation of Zina altogether against the petitioner.

13. Section 8 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 has restricted the scope of initiating proceedings to certain limits. It reads:‑

"No proceedings under this Ordinance shall be initiated except on a report made to the police or a complaint lodged in a Court by the following, namely:

(a) if the person in respect of whom the Qazf has been committed be alive, that person, or any person authorised by him; or

(b) if the person in respect of whom the Qazf has been committed be dead, any of the ascendants or descendants of that person:"

Proceedings under the mentioned provisions are, therefore to be initiated either on the report made to police or by a complaint lodged in Court that person in respect of whom the Qazf has been committed and if that person is dead then such rights ha;, been given to the ascendants or descendants of that dead person.

14. Since there was absolutely no charge of Zina against the petitioner, Qazf, if any, has not at all been committed against him. The aggrieved person against whom direct allegations of Zina had been made was one Zar Gul who has neither made a report to the police nor has lodged any complaint under the such provisions of law.

15. Since no specific charge of Zina had been levelled against the petitioner by the alleged victim, Mst. Shamim Mai, respondent No.5, the alleged Qazf has, therefore, not been committed in respect of the petitioner. The proceedings could not, therefore, be initiated by the petitioner as no such proceedings can be initiated under the such provisions of law by a person other than one mentioned in section 8 of the Ordinance.

16. Accordingly, we find no force in the contention of the learned counsel for the petitioner that by virtue of provisions contained in section ie of the Ordinance proceedings could be initiated by the petitioner and that section 8 of the Ordina.nce was of a bar to such proceedings.

S.A./352/Sh.F Petition dismissed.

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