PLJ 2009 FSC 116
[Revisional Jurisdiction]
Present: Salahuddin Mirza, J.
Mst. DURR-E-SHAHWAR BEGUM--Petitioner
versus
Haji BAKHTAWAR SAID MUHAMMAD and another--Respondents
Crl. R. No. 8/I of 2004, decided on 25.1.2008.
Offence of Qazf (Enforcement of Hadd) Ordinance, 1979
(VIII of 1979)--
----Ss. 6, 7 & 14--Criminal Procedure Code, (V of
1898), S. 202--Illegitimate--Immoral character and disowned the pternity of
children--Postponement of issue of process--Preliminary inquiry--Sajjada nashin
of Dargah of Hazrat Baba Farid Shakar Gunj--Unfortunately marriage did not last
long and divorced deed was executed--Committed the offence of Qazf--Effect
reconiliation after receipt of divorce deed--False charge of adultery and
declared that her children were not from his nutfa and were
illegitimate--Immoral character and disowned the paternity of her
children--Allegations of immorality, even though made after marriage between
parties stood dissolved due to divorce, were nevertheless in respect of period
when marriage between them subsisted and therefore S. 7 of Qazf Ordinance, was
not applicable--Charge was not framed against respondent u/S. 7 of Qazf
Ordinance, but decided to proceed against him u/S. 14 of Qazf Ordinance--Such
relationship had admittedly come to an end when respondent divorced petitioner
and executed divorce deed--Petitioner and respondent were just a woman and man,
not husband and wife--When respondent in his written statements and before a
punchayat in his own house made imputation of zina and explicitly alleged that
all of her children were illegitimate children, therefore, action of respondent
clearly attracted provisions of Ss. 6 and 7 of Qazf Ordinance--Petition
accepted. [P. 120] A, B & C
Mr. Muhammad Shoaib Abbasi, Advocate for Respondent.
Mr. Asjad Javed Goral and Syed Ali Imran, DPG's for
State.
Date of hearing: 7.12.2007.
Judgment
By way of introduction it may be stated in brief that
petitioner Mst. Durr-e-Shahwar and respondent Haji Bakhtiar Said Muhammad were
married on 23.7.1972, the respondent being the younger brother of Diwan Ghulam
Qutbuddin (since deceased, former `sajjada nashin' of the Dargah of Hazrat Baba
Farid Shakar Gunj, Pakpattan, but unfortunately the marriage did not last long
and the respondent orally divorced petitioner on 24.4.1983 and the next day (on
25.4.1983) a written divorce deed was executed by the respondent which became
effective on 3.8.1983. Since then the parties are under litigation from the
level of Civil Judge to the Supreme Court.
2. The facts leading to the filing of this revision
petition are that petitioner filed a suit on 17.7.1983 against the respondent
for recovery of dower articles (or money in lieu thereof) in the Court of Civil
Judge Pakpattan. She also filed another suit on the same date in the same Court
for recovery of maintenance for herself and her three children. The respondent
filed written statements in both the suits on 16.1.1984. In both these written
statements the respondent stated that the petitioner was not of good character
and all her three children were not from him but the result of adultery.
Presumably the suits are pending without any progress having been made in them
for the last twenty-three (23) years.
3. On 9.5.1984 the
petitioner filed a complaint in the Court of Additonal Sessions Judge Pakpattan
under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979,
(hereinafter referred to as "the Qazf Ordinance"), in which she
stated (per para-5) that after receiving the divorce deed she alongwith a
number of notables, whose names she has given in the complaint and which
include the name of Pir Muhammad Sakhi Chisht, went to Pakpattan to meet the
respondent for effecting a settlement but the respondent spurned these
reconciliatory gestures of the petitioner and accused her of adultery before
the assembled notables and refused to acknowledge the paternity of the three
children of the petitioner and alleged that they were the illegitimate children
of the petitioner.
4. During the
course of inquiry under Section 202 Cr.P.C, learned Additional Sessions Judge
examined four witnesses, including respondent's brother Diwan Ghulam Qutbuddin
and Sakhi Muhammad Shah Chishti and both of them stated that they had gone to
the house of respondent alongwith the petitioner and other notables of the area
but the respondent rejected the reconciliatory gestures of the petitioner and
the notables and in front of all of them accused the petitioner of being of
immoral character and habituated to adultery and denied the paternity of her
three children. Learned trial Judge however refused to frame charge under
Section 7 of the Qazf Ordinance vide impugned Order of 6.12.2003 and held that
the inquiry under Section 202 Cr.P.C. revealed that the respondent had leveled
charge of adultery and of bad character against the petitioner during the
subsistence of marriage between them, not after the divorce, and therefore this
dispute being between husband and wife, would not attract the provisions of Section
7 of the Qazf Ordinance but of Section 14 of the Qazf Ordinance and the
petitioner impugns this order through this revision petition.
5. The bulky
record has been gone through and the son of the petitioner, learned counsel for
the respondent and learned State counsel have been heard. Mr. Ali Ahmad, son of
the petitioner, had been given special permission at his request to address the
Court on behalf of his mother.
6. The relevant
documents for the purpose of determining the validity or otherwise of the
impugned order are, firstly, the deposition of witnesses examined by learned
Additional Sessions Judge during the preliminary inquiry and the plaints in the
two family suits filed by petitioner Durr-e-Shahwar Begum against the
respondent for return of dowry and for maintenance and the written statements
filed by the respondent (both dated 16.1.1984) in the two suits, as well as an
amended written statement dated 6.1.1985' in the dowry suit. We have minutely
examined these documents.
7. According to
the petitioner, the respondent had first committed the offence of Qazf before
the respectables of the parties when they had gone to the respondent to effect
reconciliation after the receipt of divorce deed by the petitioner and the
respondent is alleged to have again committed the same offence when he filed
the three written statements in the two family suits in which he denied the
paternity of the three children of the petitioner alleging that they were not
from him but from someone else with whom the petitioner had illicit relations.
8. Appearing as PW-1 in the preliminary inquiry, the
petitioner said that the respondent had turned her out of the house some five
years prior to giving the divorce and she was living separately after receiving
the divorce deed (dated 25.4.1983) from the respondent, she went to him with
the respectabes of her family for effecting some reconciliation but the
respondent refused to hear them and stated before them that she was a woman of
bad character and her three children were the result of adultery. She also gave
the names of five respectables of her family who had gone with her to the house
of the respondent (Haji Bakhtiar Said Muhammad). (PW-2) Diwan Ghulam Qutbuddin,
Sajjada Nashin of dargha of Baba Farid Shakar Gunj, is the real elder brother
of the respondent. He deposed that the respondent was his younger brother and
lived in the adjoining house and he knew very well that the petitioner had
lived with the respondent for about 7 or 8 years after marriage and her three children
were from the respondent. He further stated that the petitioner once came to
her alongwith the respecables of the `bradari' and complained that the
respondent had divorced her and had also accused her of adultery and denied the
paternity of her children whereupon he (Diwan Ghulam Qutbuddin) sent for the
respondent (his younger brother) and tried to persuade him to affect
reconciliation but the respondent refused to patch up the dispute and even in
his presence leveled false charge of adultery on the petitioner and declared
that her children were not from his `nutfa' and were illegitimate. PW 3 is the
daughter of the petitioner who was 10 (ten) year old in July 1984 when she was
examined. Her evidence is of very little value for our purposes. PW 4 Sakhi
Muhammad Shah is the `khaloo' of the petitioner and he said that he had acted
as `gawah nikah' at the time of the marriage of the parties which took place 12
years prior to his examination in Court (he was examined on 22.7.1984), that
three children ------- Ayesha Bakhtiar, Mehrunnisa Bakhtiar and Ali Ahmad
---------- were born out of the wedlock, that `five years ago' the respondent
had turned out the petitioner and her children out of the house and about `15
months ago' he had divorced her, that on learning of the divorce a panchayat,
consisting of the respectables of the `bradri' was constituted, including him,
and they alongwith the petitioner went to the respondent (he gave the names of
the persons who went to the respondent) but the respondent accused the
petitioner before the `panchayat' of immoral character and disowned the
paternity of her three children and said they were her illegitimate children
whereupon all of them straightaway went to respondent's elder brother, Diwan
Ghulam Qutbuddin, who sent for the respondent who came to his house whereupon
Diwan sahib asked the respondent to behave properly and be reasonable but even
before him the respondent repeated the charge of immorality against the
petitioner and again disowned the paternity of her children.
9. Learned
Additional Sessions Judge observes in the impugned order that the evidence on
record revealed that the allegations of immorality, even though made after the
marriage between the parties stood dissolved due to divorce, were nevertheless
in respect of the period when the marriage between them subsisted and therefore
Section 7 of the Qazf Ordinance was not applicable and hence he did not frame
charge against the respondent under Section 7 of the Qazf Ordinance but decided
to proceed against him under Section 14 of the Qazf Ordinance.
10. In our view,
learned Additional Sessions Judge seriously erred in law in holding that the
preliminary evidence made out a case of Section 14 of the Qazf Ordinance.
Learned Additional Sessions Judge failed to note that Section 14(1) commences
by the words `When a husband accuses before a Court his wife
------------------'. Here, there are no husband and wife. Such relationship had
admittedly come to an end on 25.4.1983 when the respondent divorced the petitioner
and executed divorce deed (the respondent concedes in his written statements
before the Family Court that he had divorced the petitioner and had executed
divorce deed on 25.4.1983). There is, therefore, no question of Section 14 of
the Qazf Ordinance being attracted to the facts disclosed by the evidence
adduced by the petitioner during preliminary inquiry under Section 202 Cr.P.C.
The petitioner and respondent were just a woman and man ---------- and not
husband and wife ---------- when the respondent in his written statements
(three of them) and also before his elder brother and, allegedly, also before a
punchayat in his own house made imputation of zina concerning the petitioner
and explicitly alleged that all of her three children were illegitimate
children and therefore the action of the respondent clearly attracted the
provisions of Sections 6 and 7 of the Qazf Ordinance. The impugned order dated
06.12.2003 is therefore untenable.
11. For the
reasons given in the preceding paragraph, the revision petition is accepted,
the impugned order is set aside and the case is remanded to learned Additional
Sessions Judge with the direction to frame the charge under Sections 6 and 7 of
the Qazf Ordinance and proceed with the case in accordance with law.
12. It is a matter
of serious concern that the criminal complaint filed by the petitioner in 1984
and family suits about maintenance and recovery of dowry amount, filed in 1983,
are still pending ----------- the criminal complaint at the stage of framing the
charge and the family suits at the stage of framing the issues ------------
after a lapse of nearly a quarter century. Learned Additional Sessions Judge
who is trying the complaint and learned Judge of the Family Court who is trying
the family suits are advised to dispose of these quarter-century old cases
pending before them as early as possible by giving short adjournments of not
more than a week, avoiding adjournments on frivolous and flimsy grounds and by
remaining on guard against delaying tactics, if any, employed by one party or
the other.
13. This pathetic
delay in the disposal of these three cases needs to be brought to the notice of
the Honourable Lahore High Court. A copy of this judgement may therefore be
sent to the Registrar of Lahore High Court as well as to the District &
Sessions Judge Pakpattan to apprise them of such colossal delay in the progress
of these cases.
(Sh.A.S.) Petition
accepted.
