Punishment of Qazf is Eighty Stripes
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This case involved a woman convicted by a trial court in Layyah for the offence of Qazf, which means falsely accusing someone of unlawful sexual intercourse (zina). The trial court sentenced her under Section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 to two years rigorous imprisonment, 40 stripes of whipping, and a fine of Rs. 50,000 as compensation to the complainant, with six months imprisonment in default of payment.
On appeal, the Federal Shariat Court found a fundamental legal flaw: Section 11, under which she was convicted, had actually been removed from the law back in 2006, before the alleged incident, the complaint, and the trial court's judgment ever took place. The correct provision in force was the amended Section 7, which only prescribes a punishment of 80 stripes for Qazf, with no provision for imprisonment, fine, or compensation. The court also noted that whipping as a tazir (discretionary) punishment, as opposed to whipping as hadd, had been abolished altogether since 1996.
Because the trial court convicted and sentenced her under a law provision that no longer existed, the entire judgment was declared to be without jurisdiction. The Federal Shariat Court set aside the conviction and acquitted the woman honourably, releasing her from her bail obligations. This case highlights the importance of courts applying the correct, currently valid law rather than outdated or repealed provisions.
یہ مقدمہ ایک ایسی خاتون سے متعلق ہے جسے ضلع لیہ کی ٹرائل کورٹ نے قذف کے جرم میں مجرم قرار دیا تھا، قذف کا مطلب ہے کسی پر جھوٹا الزام لگانا کہ اس نے زنا کا ارتکاب کیا ہے۔ ٹرائل کورٹ نے اسے حد قذف کے نفاذ کے آرڈیننس 1979 کی دفعہ 11 کے تحت دو سال قید بامشقت، چالیس کوڑوں اور پچاس ہزار روپے جرمانہ، جو شکایت کنندہ کو بطور معاوضہ ادا کیا جانا تھا، کی سزا سنائی تھی، اور جرمانہ ادا نہ کرنے کی صورت میں چھ ماہ قید کی سزا بھی مقرر کی گئی تھی۔
اپیل پر وفاقی شرعی عدالت نے ایک بنیادی قانونی خامی کی نشاندہی کی، یعنی دفعہ 11 جس کے تحت اسے مجرم قرار دیا گیا تھا، وہ دراصل سن 2006 میں قانون سے حذف کی جا چکی تھی، یعنی مبینہ واقعہ، شکایت درج ہونے اور ٹرائل کورٹ کے فیصلے سے بھی پہلے۔ اس وقت نافذ درست دفعہ ترمیم شدہ دفعہ 7 تھی، جس میں قذف کی سزا کے طور پر صرف اسی کوڑے مقرر ہیں، اور اس میں قید،
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PLJ 2013 FSC 25 [Appellate Jurisdiction] Present: Muhammad Jehangir Arshad , J. Mst . ABIDA BIBI--Appellant Versus STATE and another--Respondents Crl . Appeal No. 88/L of 2009, decided on 18.1.2013. Offence of Qazf (Enforcement of Hadd ) Ordinance, 1979 (VIII of 1979)-- ----S. 11--Appeal against judgment--Offence of Qazf --Conviction and sentence--Challenge to--Offence u/S. 11 of the Offence of Qazf (Enforcement of Hadd ) Ordinance VIII of 1979 was proved against the accused, therefore, she was convicted under the above said offence and sentenced to R.I 2 years with whipping of 40 stripes subject to confirmation by High Court--Trial Court also imposed fine of Rs.50,000/- as compensation for payment to the complainant or in default to suffer for 6 months simple imprisonment--Even otherwise, under Amended Section 7 of the Offence of Qazf (Enforcement of Hadd ) Ordinance VIII of 1979, punishment for Qazf is only whipping numbering 80 stripes and no punishment of either description or compensation or fine in the form of compensation is provided under the said amended Section--The sentences so awarded by the trial Court were in fact provided under the omitted Section 11 of the Offence of Qazf (Enforcement of Hadd ) Ordinance, VIII of 1979--Sentence of whipping in case of offence of Zina as Tazir could not be awarded after the enforcement of Abolition of the Punishment of Whipping Act, 1996--Appeal accepted. [Pp. 26 & 27] A & B Syed Fida Abbas , Advocate for Appellant. Mr. Imtiaz Hussain Khan Baloch , Advocate for Complainant. Mr. Zahid Younis , D.P.P for State. Date of hearing: 18.1.2013. Judgment This appeal is directed against the judgment dated 25.08.2009 delivered by learned Additional Sessions Judge, Layyah whereby the appellant was convicted under Section 11 of the Offence of Qazf (Enforcement of Hadd ) Ordinance, VIII of 1979 and sentenced to 02 years. R.I with 40 stripes. She was also held liable to pay Rs. 50,000/- as compensation to the complainant or in default thereof to further undergo 06 months simple imprisonment.
2. In view of the proposed judgment neither the facts need be mentioned nor the evidence need to be reproduced. This appeal merits acceptance on the sole ground that neither at the time of the alleged occurrence, nor filing of complaint or passing of the impugned order under Section 11 of the said Ordinance was part of Statute but the same had been omitted through Enforcement of Protection of Women (Criminal Laws Amendment) Act, 2006 which was enforced w.e.f 02.01.2006. Sajid Hussain Respondent No. 2 filed a complaint under Section 7 of the Offence of Qazf (Enforcement of Hadd ) Ordinance, VIII of 1979 against the appellant on 16.07.2008. However, on the completion of trial, learned trial Court came to the conclusion that the offence under Section 11 of the Offence of Qazf (Enforcement of Hadd ) Ordinance VIII of 1979 was proved against the accused, therefore, she was convicted under the above said offence and sentenced to R.I. 2 years with whipping of 40 stripes subject to confirmation by this Court. The learned trial Court also imposed fine of Rs.50 ,000 /- as compensation for payment to the complainant or in default to suffer for 6 months simple imprisonment. Even otherwise, under Amended Section 7 of the Offence of Qazf (Enforcement of Hadd ) Ordinance, VIII of 1979, punishment for Qazf is only whipping numbering 80 stripes and no punishment of either description or compensation or fine in the form of compensation is provided under the said amended Section. The sentences so awarded by the learned trial Court were in fact provided under the omitted Section 11 of the Offence of Qazf (Enforcement of Hadd ) Ordinance, VIII of 1979, which is reproduced below for ready reference: "11. Punishment for Qazf liable to tazir .--Whoever commits Qazf liable to tazir shall be punished with imprisonment of either description for a term which may extend to two years and with whipping not exceeding forty stripes and shall also be liable to fine."
3. Further the sentence of whipping in case of offence of Zina as Tazir could not be awarded after the enforcement of Abolition of the Punishment of Whipping Act, 1996. Section 3 of the said Act is reproduced below:-- "3. Abolition of Punishment of Whipping.--Except in cases where the punishment of whipping is provided for as Hadd , the sentence of whipping provided under any law, rule or regulation for the time being in force shall stand abolished: Provided that where, on the commencement of this Act, the sentence of whipping awarded by any Court, or Tribunal has not been executed, such sentence of whipping shall stand remitted."
4. Learned Counsel for the complainant though tried to argue that in fact the appellant was convicted and punished under the amended Section 7 of the Offence of Qazf (Enforcement of Hadd ) Ordinance, VIII of 1979 yet failed to convince the Court in the light of the above noted discussion. Resultantly this appeal is accepted, the judgment of the learned trial Court dated 25.8.2009 being without jurisdiction is set-aside and the appellant is acquitted of the charge honourably . She is present in the Court. Her bail bonds are recalled. She is released from the liability of bail bonds. Copy of this judgment be sent to Mr.Sadaqat Ullah Khan, learned Additional Sessions Judge, Layyah through the learned Sessions Judge wherever he is posted, for his perusal. (A.S.) Appeal accepted