' SYED MANZOOR HUSSAIN, GILANI, J.---This appeal is filed under section 25 of the Azad Jammu and Kashmir Enforcement of Islamic Penal Laws Act, 1974 against the judgment of a Division Bench of the Shariat Court of Azad Jammu and Kashmir passed in Criminal Appeals Nos.36 and 42 of 2004 decided together on 3-12-2004 at Muzaffarabad.
2. The facts giving rise to the filing of present appeal, are that Mst. Hussan Jan made a statement at Police Station Muzaffarabad on 26-12-2003, stating that her son Tahir is married to the daughter of Hakim Din. Hakim Din was not happy on his marriage and had animosity against her for this reason. She stated that on 13-12-2003, when she along with her sons Tahir and Tayyab, was going to the house of Hakim Din for bringing the wife of Tahir, Hakim Din, his son Safeer, his wife Silver Jan and daughter Saiqa, who were waylaying, attacked upon them near the house of Qazi Munawer Hussain with the intention to kill them. Hakim Din accused is alleged to have pelted a stone on her which hit her at left side of the head and she fell down. The ladies are alleged to have beaten her and her sons with fists and kicks, while Safeer is alleged to have beaten her and her sons with sticks. This occurrence is stated to have been witnessed by Muhammad Rafique, Qazi Munawar Hussain and other people of the village besides her sons.
3. A case under F.I.R. No.405 of 2003 was initially registered at Police Station Muzaffarabad under sections 324, 337 and 341, A.P.C. On this statement. In the meantime, Mst. Hussan Jan who was admitted in the hospital died, on which section 302, A.P.C. Was also added.
4. After investigation of the case, the accused were challaned before the Additional District Criminal Court, Muzaffarabad on 17-9-2004. The order recorded by the Court on that date is as follows:-- {{URDU TEXT}}
5. The case was, thereafter, transferred to the District Criminal Court. The statements of the accused, Hakim Din, Safeer, Mst. Silver Jan and Saiqa were recorded on 20-9-2004 under section 265-D, Cr.P.,C. Who denied the charges. The trial Court commenced recording statement of the prosecution witnesses with effect from 21st of September, 2004 and concluded the prosecution evidence on 27-9-2004. The statement of the accused under section 342, Cr.P.C. Was recorded on 29-9-2004. The order of the trial Court, dated 29-9-2004 is as follows:-- {{URDU TEXT}}
6. It appears from the perusal of the order sheet of the trial Court that instead of 2-10-2004, the date which was fixed on 29-9-2004, the arguments in the case were heard on 4-10-2004. The order, dated 4-10-2004 is as follows:-- ' Section 337-A(1) Penal Code with Rs.10,000 as "Daman". Relevant part of the judgment of the trial Court is as follows:-- {{URDU TEXT}}
7. It was followed by another order, dated 5-10-2004 which is also as follows:-- {{URDU TEXT}}
8. The trial Court through its judgment, dated 5-10-2004, acquitted all the other accused persons except Hakim Din son of Slam Din who is sentenced to two years rigorous imprisonment under
9. Hakim Din, convicted-accused filed an appeal before the Shariat Court on 7-10-2004. The surviving heirs of the deceased Mst. Hussan Jan also filed appeal on 21-10-2004 for enhancement of the sentence against Hakim Din, and against the acquittal of other accused persons. Both the appeals were consolidated and decided through the impugned judgment. Appeal filed by convict appellant is dismissed while accepting the appeal filed by complainant party, the accused appellant is sentenced to Diyyat and ten years imprisonment under section 316 Penal Code.
10. The learned Advocate appearing for the accused person, Ch. Muhammad Ibrahim Zia, contended that the trial Court travelling beyond the law has violated the mandatory provisions of law regulating the trial. Citing the instances he contended that the trial Court on the very outset when challan was filed, ordered the production of evidence and some of the witnesses were produced along with the challan, although the question of production of witnesses could have arisen after recording the statement of the accused persons under section 265-D of Cr.P.C.
Contending further he argued that under sections 241-A or 265-C, Cr.P.C., as the a case may be, copies of the documents mentioned in the section have necessarily to be supplied to the accused not later than seven days before the commencement of the trial, while the copies were given to the accused on 17-9-2004 and trial was commenced on 20-9-2004, which is a flagrant disregard of the provisions of law. Referring to the statement of Hakim Din recorded on 20-9-2004 under section 265-D of Cr.P.C., the learned counsel contended that accused was initially charged by the Court under sections 302, 341 and 34 of the Penal Code, but sections 324 and 337 Penal Code were later added in it on 22-9-2004. According to the learned Advocate, this practically amounts to the fabrication of record and at the. Same time violative of the very spirit of the trial. The learned counsel further argued that as the accused were charged under section 302, besides other penal sections, the Tazkia (purgation ) of the witnesses of the prosecution was indispensable in view of Articles 3 and 17 of the Vanun-e-Shahadat Order, 1984 and section 26 of the Islamic Penal Laws Act 1974, but the trial Court did not conduct Tazkia (purgation) of the witnesses stating in its order, dated 29-9-2004, reproduced above, that the `Tazkia' of witnesses is not felt necessary as the case by evidence appears of `Tazeef . According to the learned Advocate, the trial Court had practically prejudged the entire case and made a mind to convict the accused which is clear from the fact that the prosecution evidence was called at the very outset without satisfying itself as to whether the accused appear guilty of the offences attributed to them or not. According to him, it is also spelt out from the order of the Court, dated 29-9-2004, wherein the Court has prejudged that the case is of `Tazeer'. He contended that how could the Court make such a mind without hearing the accused. The arguments on their behalf and before going through the evidence of the prosecution.
The learned counsel in support of his contention relied upon the following authorities:--
(1) Ajeet Singh v. The State (PLD 1982 Lahore 10), (2) State v. Khalique-ur-Rehman and 3 others 2001 YLR 2936, (3) Muhammad Rafiq v. The State (1991 PCr.LJ 749). (4) Azad Government of the State of Jammu- and Kashmir through Chief Secretary and 2 others v. Mujahid Hussain Naqvi and another (PLJ 2001 SC (AJ&K) 50). (5) Jagin and 2 others v. State PLD 2001 Quetta 64 and (6) Kh. Imtiaz Ahmed v. The State (PLD 1988 SC (AJ&K) 134).
11. The learned Advocate-General and the learned Advocate appearing for the complainant.
Khawaja Attaullah Chak, defended the impugned judgment against the convict appellant contending that it is quite in accordance with law and facts. They contended that the case is fully proved against the accused appellant and all other acquitted accused persons. The learned Advocate, however, conceded at bar that the procedure relating to the trial has not been observed by the trial Court, but according to the learned Advocates, it does not vitiate the proceeding as no prejudice is caused to the accused. According to them, if no prejudice is caused to the accused, the irregularity, if any, is curable under section 537 of Cr.P.C. The learned counsel neither relied upon any authority nor was any cited at bar.
12. After hearing the learned Advocates for the parties we have gone through the file of the trial COurt. Main thrust of the arguments of learned Advocate for the appellant is against the violation of the mandatory provisions of the Code of Criminal Procedure by the trial Court in conducting the trial, we have, therefore, examined the case from that perspective. As the procedure adopted by the trial Court appears flagrantly violated, we refrain from commenting on the evidence regarding culpability or otherwise of the accused persons. This matter is left to be decided by the Courts below after trial in accordance with law as we are proposing to remand the case.
13. The facts stated above do not admit any ambiguity that except five prosecution witnesses, numbers 3, 9, 10, 12 and 13 all others were present when the challan was filed in the Court. Copies of the documents filed along with the challan were furnished to the accused on the same date i.e. 17- 9-2004 and their statements under section 265-D, Cr.P.C. Were recorded on 20-9-2004.
14. Chapter XX of the Criminal Procedure Code relates to the trial of the cases by Magistrates, while Chapter XXII-A of the Code relates to the trial before the High Court and the Court of Sessions. As the trial was conducted by the District Criminal Court which is substituted for the Court of Sessions Judge, the procedure visualized by Chapter XXII-A would, therefore, apply in the case. It also appears from the first statement of the accused persons that it is recorded under section 265-D of Cr.P.C. The provisions of both the chapters are, however, almost identical.
15. For true perception of law, the relevant provisions are reproduced:-- "265-B. Procedure in cases triable by High Courts and Courts of Session.--The following procedure shall be observed by the High Court and the Courts of Session in the trial of cases triable by the said Courts.
265-D. When charge is to be framed.---If, after perusing the police report or as the case may be, the complainant, and all other document and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused. (Underlining is ours)."
' The procedure visualized for trial by the above sections is provided in the sections that follow.
16. The first step which the Court is to take in a case instituted upon the police report is to furnish the copies of the documents filed with police report. The relevant part of section 265-C may also be reproduced:-- 265-C, Supply of statements and documents to the accused. --(1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:--
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recorded under sections 161 and 164; and
(d) the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any: ' Provided that, if any part of a statement recorded under sections 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused. (Underlining is ours)."
17. Learned Advocate for the accused-appellant has admitted that the copies of the documents visualized by section are supplied to the accused. However, what is objected by the learned Advocate, and also endorsed by the Advocates appearing for the prosecution, is that the copies of the above documents were supplied to the accused on 17-9-2004 and they were charged on 20- 9-2004, within three days of supply of the copies, while the trial could commence at least seven days after the supply of copies. This illegality was further compounded when new charges were added on 22-9-2004, to the charges for which the accused Hakim Din was earlier charged on 20- 9-2004 and that too, in the same document.
18. The perusal of sections 265-B and 265-C of the Code of Criminal Procedure, reveals that the obligation of the Court in both the sections is couched by the word "shall" for observing the procedure, supplying the copies and commencing the trial "not later than 7 days before the commencement of the trial". The words do not accept any ambiguity that it is incumbent and mandatory for the Court. To strictly follow the procedure laid down for trial of the cases. The stage of charge under sections 265-D and 265-E would arise only when the copies are supplied to the accused in accordance with the provisions discussed above. The proceedings for trial of the accused after framing the charge can commence only when the Court is satisfied after perusing the police report and all other documents, referred above that a ground is made out for proceeding against the accused. The charge shall be read over and explained to the accused under section 265-E.
19. If the accused pleads guilty, the Court shall record the plea and may convict the accused thereon, tinder section 265-E(2) of Cr.P.C. However the Court is not bound or obliged to convict the accused even if he pleads guilty. It is discretionary with a Court to convict him or not on this plea as the words used "arid may in its discretion convict him thereon" are clear enough to suggest that it is the discretion of the Court.
20. Under section 265-F(1) of the Code of Criminal Procedure, "if accused does not plead guilty or where the Court does not convict him on his pleading guilty, the Court shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution".
Under subsection (2) of section 265-F of the Code of Criminal Procedure, the Court is at liberty "to call any person likely to be acquainted with the facts of the case and to be able to give evidence for prosecution, if the Court deems fit after ascertaining it from the Public Prosecutor or the complainant". The Court is not bound to record the statement of only those witnesses who are listed in the calendar of witnesses, but to arrive at a just conclusion, the Court can go beyond that, however, it has to ascertain the same from the Public Prosecutor or the complainant. As the case may be, subject to the general provisions that summoning of any such witness does not cause delay or defeat the ends of justice.
21. The production of evidence by the prosecution is a step after the statement of the accused charging him with the offence, is recorded. What is manifest from the above is that unless the statement of the accused under section 265-D or 242 of Cr.P.C. As the case may be, is recorded, the evidence of the prosecution cannot be called. If the prosecution is ordered to produce the evidence even before recording the statement of the accused and charging him, it would definitely mean that Court.Is predetermined to convict him, and he is presumed to be guilty, as against the presumption of innocence and the Court is set to follow a procedure of its own choice, not that, which is ordained by law. The question of calling of the evidence of prosecution would not arise at all, if after examining the accused, the Court is of the opinion that there is no ground for proceeding with the trial of the accused; similarly, if the Court on the plea of his pleading guilty convicts the accused, the evidence of the prosecution in that case also would not be required if the Court is satisfied by the admission of the accused.
22. In the case in hand, the Court without examining the accused, charging them and without waiting even for seven days after supply of copies to them, called the prosecution evidence. It appears that the Court was in an unnecessary haste, thereby flouting and violating the mandatory provisions of the Code of Criminal Procedure.
23. The law-makers have very wisely incorporated the above provisions in the Code of Criminal Procedure intending to ensure just, fair and safe trial of the accused. The purpose is that the accused should know before hand after perusal of the documents and statements of the witnesses recorded under section 161, Cr.P.C., the charges levelled against him and the evidence in support of those charges besides the conduct and antecedents of the witnesses who are to be examined against him. A gap of at least seven days enables the Court as well to study the case and satisfy itself as to whether any case for trial is made out or not. It is real not the mechanical process which is endeavoured to be achieved by law, to save time of Courts, had accused from being vexed and dragged in a case in which there is no ground for proceeding.
24. The procedure visualized by Chapter XX or XXII-A of Cr.P.C., as the case may be, ensures a fair trial not only for the accused but also to the prosecution as well as for the complainant. The provisions in the chapters have dispelled the age-old impression that the accused is the special child of the law. The Court is given a discretion under subsection (2) of section 265-F to summon any person who appears to the Court to be acquainted with the facts of the case and able to give evidence for the prosecution. Thus, the above regulatory provisions are not for the accused only, but for the prosecution and complainant as well. These ensure that justice should be done between all the parties before the Court i.e. The complainant who moved the machinery of law, the investigating agency who conducted the investigation and collected the evidence, the prosecution who conducts the prosecution on the basis of evidence collected by the investigating agency and the accused who is the ultimate sufferer or winner, as the case may be. The right of all the parties for fair trial is ensured. Any departure from any of the provisions would imbalance the system and prejudice any of the parties. In fact the non-observance or breach of any of the provisions in itself amounts to prejudice the interest of the party who complains of its non-compliance. The Lahore High Court in the case reported as Ajeet Singh v. The State (PLD 1982 Lah. 10), relying upon the cases reported as V.M. Abdul Rehman v. King Emperor) AIR 1927 PC 44) and Emperor v. Mustaffa Joosb (AIR 1947 Born 325) has gone to the extent of saying that "prejudice to the accused is to be inferred from every breach of the provisions of law given for the protection or benefit of the accused. The preposition would not change even if the accused had himself consented to such breach. On these principles omission to comply with the provisions of section 265-C must be treated to have vitiated the conviction. Where the procedure adopted is illegal, the consent or waiver on 'the part of the accused cannot cure the defect under section 537, Cr.P.C. Even though no prejudice is caused to him." The Federal Shariat Court has also held in the case reported as Mst.
Nusrat Mai (Tahira Sultana) and others v. State (1997 MLD 2869), that the provisions of section 265- C, Cr.P.C. Are mandatory and non-compliance thereof vitiates the trial.
25. Although the case of non-supply of documents is not involved in this case, but perusal of the above authorities reveals that the provisions of section 265-C which are similar to the other provisions of this Chapter, so far as the right of accused is concerned, are mandatory and any violation thereof vitiates the trial. Thus the argument of the learned Advocates for the prosecution that no prejudice is caused to the accused is dispelled.
26. Where a power is conferred to do an act in a particular manner or way, that powers is to be exercised in the manner or way alone, and it necessarily excludes the doing of the act in any other manner than that which has been prescribed. This is a principle of universal application. I am fortified to hold this view by the following authorities:-- ' State of Utter Pradesh v. Singhara Singh and others (AIR 1964 SC 358); and ' Reference No.1 of 1977 by President, AJ&K (PLD 1978 SC (AJ&K) 37).
' The Supreme Court of Azad Kashmir has reaffirmed the principle in the case reported as Azad Government of the State of Jammu and Kashmir through Chief Secretary and 2 others v. Mujahid Hussain Naqvi and another (PLJ 2001 SC (AJ&K) 50), in the following manner:-- (27)It is elementary principle of law that when an act is required to be performed in a particular manner that must be performed according to that manner or it should not be done at all. In the like way if a mandatory condition for the exercise of jurisdiction by an authority, Tribunal or Court is not fulfilled then all proceedings, which follow, become illegal and without jurisdiction. In the case in hand all the orders were passed contrary to the procedure contained in the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977."
However, the Courts are free to reach to a just decision by evolving or adopting its own procedure, if there is no other express provision in the field in relation to a matter or proceedings. It is held in the case reported as Willie (William) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) that absence of any provision on a particular matter does not mean that the Court has no power in regard thereto and the Court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law. This is the only exception to the general rule, however, it is also subject to the golden rule of fair trial.
28. It needs hardly to say that if two possible and reasonable construction are possible, the Court must lean towards that one which favours the accused rather than one prejudice to his interest. In the above referred legal provisions, there is no ambiguity and no other construction is possible except that which provisions say. Where section admits of only one reasonable meaning, the Court is not authorized to give it any other meaning except that which flows from the section. In criminal trials the duty of the Court is more onerous than in civil cases. In the later class of cases, the Court will decide on the evidence that the parties choose to produce, while in the criminal cases as is clear from subsection (2) of section 265-F of Code of Criminal Procedure, it is the duty of the Court to see that all relevant evidence is brought before it. The responsibility of the Court in criminal cases is to ensure that all proper and necessary steps are taken to arrive at the truth, irrespective of the fact whether the Advocates of the parties have argued a particular matter or not. It is held in the case titled Dattatraya Malhar Bidhkar v. Emperor (AIR 1937 Bombay 28), in the following manner:-- "In dealing with a penal provision the rule of strict construction requires that the language shall be construed so that no cases shall be held to fall within it which do not Fall within the reasonable interpretation of the enactment."
29. The Courts are not to begin with the intention to convict the accused as it appears to have been done in this case. The Courts are to find out as to who is the real accused. If he is before the Court, then to satisfy as to whether there are reasonable ground for his trial and then to satisfy as to whether he is proved guilty of the offence for which he is charged, and if so, proved in accordance with fair trial visualized by the procedure, the maximum sentence prescribed by the law must be awarded. If even a minimum doubt is found, he has to be discharged or acquitted, as the case may be, irrespective of the fact howsoever heinous is the offence of which he is accused.
It appears that the violation of the above referred provisions of law were not brought to the notice of the Shariat Court or were ignored by the Court. Be that as it may, it is a flagrant disregard of law.
30. It is held by this Court in the case reported, as Abrar Hussain Shah and another v. The State and another PLD 1987 SC (AJ&K) 65 that the provisions of Code of Criminal Procedure are meant to be obeyed and the Courts are not expected to ignore its provisions in the hope that they might find shelter under sections 535 and 537 of Cr.P.C. The Dacca High Court in the case reported as The State v. Abdul Ra,him Sikder (PLD 1958 Dacca 257), has held that "where trial is conducted in a manner not authorized by law and the rules of procedure relating to the matters of fundamental character, the decision in such a trial, whether of conviction or acquittal is of little, consequence and the entire proceeding must be set aside irrespective of any question of prejudice to anyone".
31. The argument that as all the procedures are meant to advance the cause of justice and non- observance of any provision does not vitiate the trial is not untrue in totality, but there is difference between the inadvertent failure to follow a procedure and deliberate non-obserVance of the provisions. If the practice as adopted by the trial Court is allowed on the pretext that the trial is completed by the Court without any prejudice to accused, though not in accordance with the mandatory provisions of the Code, it will create a tendency of fleeing from law and then to a State of lawlessness and ultimately a day may come when an adventurist may stand up and flay an accused alive on mere allegation. The law has to be observed as it is, not as it should be or in a manner not authorized by law. Procedural irregularities in civil matters are different than that in criminal matters. In civil matters if substantial justice is done,' procedure may yield to justice, but in criminal cases the substantial justice cannot be said to have been done if the due process of law is not observed. The due process of law is the golden rule, not the selective process. Internal administrative arrangement of an institution as to how the business has to be regulated or done or who is to conduct the business, relates to administrative skill of an administrator unless regulated by rules or statutes, but the rights and liabilities creating powers have to be exercised in accordance with law, not over and above the law. Nobody is above the law including the law- makers themselves.
32. Trend of deviating from legal procedure in the name of speedy disposal of cases is a dangerous tendency. There is a marked difference between the Speedy Trial Courts, Special Courts, Summary Trial Courts and the Courts of normal criminal and civil jurisdiction. Courts of every category have to act /strictly in accordance with the procedure which is prescribed for it. No Court can create or adopt a procedure which is not meant for it. It amounts to acting contrary to law. It is of course duty of a Court to make best use of even a bad law. Harshness of a law can be softened by its wise application and interpretation. But laws which have stood the test of reasonability for the last more than one century throughout the world cannot be allowed to be defeated in the name of speedy trial, unless it is amended or repealed by competent legislature. Courts cannot amend the law. Competent Courts of course can declare a law ultra vires the Constitution but as long as it is on the statute book, no reform or policy can override it.
' In the case reported as Muhammad Yakub v. Emperor (AIR 1938 Allahabad 534), where a departmental instruction was issued that a bail order shall be communicated through Superintendent of Policy by Magistrate, it was held that" Criminal Procedure Code cannot be modified by any orders of the Local Government in a Departmental Code. Similarly in the case titled Lai' Singh v. Emperor (AIR 1938 Allahabad 625), where in a manual of Government orders it was stated that the Magistrate should add certain things to the certificate under section 164, Cr.P.C.
It was held that:-- " Now we may point out that there is no section of the Criminal Procedure Code which gives the Executive Government power to make rules to supplement the Code, and whatever value may be attached to the paragraph in the Manual of Government Orders it cannot have any legal effect as regards the admissibility or inadmissibility of the confession. However the Courts can change earlier interpretation or view in view of changed circumstances, but not the law.
33. This Court in the case reported as State v. Khalique-ur-Rehman and 3 others (2001 YLR 2936) has held that the violation of the Azad Jammu and Kashmir Police Rules issued under Resolution No.638 on December, 30. 1948 which cast a duty upon the prosecution agency to supply the copies of the statement of all the witnesses and other documentary evidence to the accused persons are the mandatory provisions, violation of which shall be the violation of law. These rules were practically analogues to sections 265-C and 265-D of Cr.P.C. Etc.
34. Thus the provisions of sections 265-A to 265-H or 241 to 247, Cr.P.C. Which provide a detailed and self-explanatory procedure for just and fair trial, are mandatory in nature and have to be complied with in letter and spirit and any breach thereof vitiates the trial.
35. The arguments of the learned Advocate for the appellant that purgation of the witness is not conducted is also borne out from the record and the interim order of the trial Court, dated 29-9- 2004. The purgation is not conducted by the trial Court on the ground that the case is of Tazeer. We wonder how did the trial Court predict it in utter disregard of the offence for which the accused was charged, without hearing the accused, going through the evidence and hearing the arguments.
The accused was charged for murder under section 302 of the Penal Code. Four male eye- witnesses are also cited. Under Proviso (III) of Article 3 of the Qanun-e-Shahadat Order 1984, "The Court is bound to determine the competence of a witness in accordance with the qualification prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness."
Article 17 of the Qanun-e-Shahadat Order, 1984 also provides the procedure of the competence of a person to testify, and number of witnesses required in any case, that "if shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.' Subsection.
(2) of Article 17 of the Qanun-e-Shahadat provides the number of witnesses gender wise, however, it opens with the words, "unless otherwise provided in any law relating to enforcement of Hadood or any other special law". Special law relating to Qisas and Hadood in Azad Kashmir known as the AJ&K Islamic Penal Laws Act, 1974, provides the number of witnesses in Hadood and Qisas cases under section 26 of the Act, which overrides all other laws. Two major male Muslim witnesses are required to prove the cases of Hadood and Qisas. The Court is also bound under subsection (2) of section 26 to conduct 'Tazkia' (purgation) of the witnesses in Hadood and Qisas cases.
36. The offence of Qisas which erstwhile was punished under section 5 of the Islamic Penal Laws Act, 1974 is transposed to section 302 of the Penal Code by way of an amendment in the Penal Code through Act No. XII of 1995 passed by the Azad Jammu and Kashmir Legislative Assembly. By way of an amendment in the Criminal Procedure Code through Act No.XIII of 1995, dated 23-7-1995, the Courts of the Magistrate and the Sessions Judge are designated as the Tehsil Criminal Court and the District Criminal Court, respectively for the purpose of cases of Hadood and Qisas arising under Islamic Penal Laws Act. Irrespective of the effect of transposing the offences relating to Qisas.
Tazeer and Diyyat to the Penal Code, instead of being retained under the Islamic Penal Laws Act and other laws, validity of which is not under challenge before us, the provisions of section 26 relating to the standard of witnesses is intact and applies in all cases of Hadood and Qisas. This provision is in addition to and supplements the general provisions of the Qanun-e-Shahadat Order, 1984.
37. The mode of proof of Qatl-i-Amd, as is alleged in this case against the convict appellant, is also provided under section 304 of the Penal Code which reads as follows:-- "(1) Proof of Qatl-i-Amd laible to Qisas shall be in any of the following forms, namely:--
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-eShahadat, 1984 (P.O. No.10 of 1984);
(c) The provisions of subsection (1) shall, mutatis mutandis, apply to hurt liable to qisas."
38. It follows from the juxta-position reading of sections 302 and 304 of the Penal Code, proviso HI of Articles 3 and 17 of the Qanan-e-Shahadat Order, 1984, and section 26 of the Islamic Penal Laws Act, 1974, that purgation of the witnesses in all cases of Hadood and Qisas is mandatory. The Court can arrive to a conclusion as to the quantum of sentence to be passed against the accused in a case of Qatl-i-Amd, only after putting the prosecution witnesses to the test of Tazkia, not before that. Any adverse opinion regarding the requirement of purgation in a case of Qatli-Amd, in which more than two major, male, Muslim persons are witnesses, is a prejudgment, and failure to conduct the purgation is a violation of the above referred Articles of the Qanun-e-Shahadat Order, Penal Code and the Islamic Penal Laws Act, 1974.
39. Right from late seventies when the Islamic Penal Laws Act came into force in Azad Jammu and Kashmir, the Courts in Azad Jammu and Kashmir have unfailingly held that Tazkia in all the cases of Hadood and Qasis has to be held after the evidence is closed and before the judgment. Record of it has to be maintained to enable the appellate Courts to satisfy themselves regarding the competence or otherwise of the witnesses. The first leading case on the point is titled State v. Amir Zaman Hanafi and 4 others (PLD 1979 SC (AJ&K) 78). This case has been followed in almost all subsequent authorities few of which may be reproduced below:--
(1) State v. Punnu Khan and 2 others (PLD 1984 SC (AJ&K) 1), (2) Kh. Imtiaz Ahmed v. The State (PLD 1988 SC (AJ&K) 134) and (3) Abdul Razaq and another v. The State (PLD 1988 SC (AJ&K) 190).
40. In a case reported as Hassan Muhammad v. The State (PLD 1989 SC (AJ&K) 5); the Supreme Court under almost the similar circumstances when it was opined by a member of the District Criminal Court that Tazkia of the witnesses 'is not necessary in view of the reasons listed in the order, it was held that purgation is a part of the trial of the case and omission on the part of the Court, not to do so, is violative of provisions of section 26(1) of the Islamic Penal Laws Act, 1974' and- the judgment--pronounced without the purgation of the witnesses renders the same to be illegal.
The legal heirs of the deceaied and sought enhancement of sentence by way of appeal before the Shariart Court. It could so order, if evidence so allowed. But can it be awarded in the absence of Tazkia? It is not mistake of perception, but ignorance of law to say that Tazkia was not required.
41. Similarly in the case reported as Qadeer Hussain v. The State through Advocate-General (1995 PCr.LJ 789), this Court has held that it is mandatory for the Court trying the case to conduct the purgation of the eye-witnesses after recording their evidence.
42. The law declared by the Supreme Court is law of the land and all the Courts are bound by it, besides acting in aid of the Supreme Court. It is sorry state of affairs that the case is decided ignoring the above authorities.
43. A question may arise that as the offence of Qaisas has not remained on the Statute Book of the Islamic Penal Laws Act, 1974, for the trial of which the District Criminal Court was established, hence the provisions of Tazkia under section 26 has become redundant. It would suffice to say that Articles 3 and 17 of the Qanun-e-Shahadat Order, 1984 and section 304 of the Penal Code in fact are also almost similar as section 26 of the Islamic Penal Laws Act, 1974. The section derives its force from Qur'an and Hadith as visualized by the above provisions of Qanun-e-Shahadat Order and Penal Code, hence the mandatory nature of the section is not vanished simply for the reason that the offence of Qisas is no more on the Statute Book of Islamic Penal Laws Act. As long as sentence of Qisas remains on the Statute Book, the Tazkia of witness has to be there.
44. While perusing the judgment of the trial Court, we have noted a novelty which is never seen before. The judgment begins with these words:-- {{URDU TEXT}}
45. Section 367 of the Code of Criminal Procedure which deals with the contents of the judgments, is as follows:-- "Every such judgment shall, except as otherwise expressly provided by this code, be written by the presiding officer of the Court or from the dictation of such presiding officer in the language of the Court, or in English, and shall contain the point or points for determination, the decision thereon and the reasons for the decisions; 2"2. Shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the Eresiding officer with his own hand, every page of such judgment shall be signed by him." (Underlining is ours).
46. The, judgment has to be restricted within the above parameters of law. The trial Court appears to have re-written the law which is beyond the scope of every Court and Judge. It is an appeasement and flattery not becoming of a Judge to write. This portion of the judgment is, therefore, expunged.
47. Irrespective of the fact that the novelty adopted by the trial Court is not warranted and accepted by law and is expunged, nothing is placed on the file of the trial Court or Shariat Court to perceive as to what revolutionary steps are enforced by the learned Chief Justice by which the trial Court is inspired to try a normal criminal case in a speedy trial manner. The policy of the Judges, be he the Chief Justice of any Court or a Judge, is law and law alone and nothing else, rest are internal arrangements and understandings for achieving the ends provided by law. We are sure that the learned Chief Justice who is the administrative head of the subordinate judiciary might have instructed/directed the subordinate judiciary to expedite the process of trial. It is very good and appreciable. But this has definitely to be in furtherance of and subservient _to_ law. Normal Civil and Criminal Courts are expected to decide the cases by dispensing the justice, not by disposing the cases. It is the quality of justice not the number of cases decided, which is the requirement of dispensation of justice. We may refer the case titled Samuel Peter v. The State (2001 PCr.LJ 1293), where a learned Judge of the Karachi High Court admonishing the judicial officers observed:-- ' I would like to impress on all the subordinate Judicial Officers to apply their minds to the facts of each case and to consider the merits instead of merely disposing of the matters brought before them for adjudication and for dispensation of justice. Mere disposal of applications/cases by Judicial Officers does not amount to dispensation of justice and amounts to non-exercise of the jurisdiction vested in them which is highly depreciated."
48. Quick or hurried conclusion of cases is good, and delay in dispensation of justice is really denying it. However, balance has to be stuck between delayed justice and hasty justice. If delay ensures justice, nothing bad in it, though not in good taste. But if haste distorts justice it is the worst than the delay.
49. The Lahore High Court in connection with hearing an appeal under Order XLI of C.P.C. Observed in the case reported as Mst. Kishwar Bibi and others v. Mst. Fazal Bibi and 2 others (PLD 2004 Lahore 717) as under:-- There is no cavil that justice delayed is justice denied, but there is equally the other aspect of the matter that sometimes justice hurried is justice buried. It is said that an attempt by the Court to do justice is vanity. The Court, however, being charged with the duty of administering justice is expected to maintain a balance, so that neither the matter is delayed unnecessarily nor it is disposed of in such a hasty manner as may be violative of basic principles of law.
50. Similarly a learned Judge of Karachi High Court in his capacity as a Special Court observed in the case titled President v. Ms. Benazir Bhutto PLD 1991 Kar. 164 in the following manner:-- ' It is true that `justice delayed is justice denied' but rough and ready justice is itself a negation of the Rule of Law. In Islam, even bare justice is not enough. It is to be tampered with mercy (ADL BIL AHSAN). A balance has, therefore, to be struck.
51. According to the trial Court the direction of the learned Chief Justice is to decide a murder case within forty days, and the case in hand is decided within twenty days, so far so good. But that does not mean that it should necessarily take 40 days or that it should not go beyond that. If an accused admits his guilt before the Court, the case may stand decided even within 10 days. But if there is an eventuality, when the witness or the witnesses are not available, the Judge or the Advocate representing the party or a party is indisposed or the Courts close for summer or winter vacation, as the case may be, or the Judge avails the leave or it is otherwise not possible to complete the trial within forty days, that does not mean that the arrangement desired is violated. The purpose is to expedite the process and the cases should not remain pile up. We may advantageously refer here the following para. From the case reported as Muhammad Nawaz alias Deno and another v.
The State (2003 MLD 79), wherein a bail was filed in the High Court on the ground that in the earlier round of bail application in the High Court, it was directed that the case of the accused be decided within two months. The direction could not be complied within that time. It was claimed, that it entitles the accused to the bail. Rejecting the contention, it was held by a Division Bench of the Karachi High Court that:-- "It needs to be clarified that indulgence shown by the superior Courts by issuance of such directions for the trial Court to conclude cases within some specified period are only meant/ aimed to expedite proceedings of the case against the accused and not to arm them with so called new ground for bail in case of noncompliance of such directions, as vehemently argued by Mr. Muhammad Ayaz Soomro."
52. There are statutes in our notice for example the Family Court Act, 1993, the Ehtesab Bureau Act, 2001 etc. Which pr9vide a period within which the cases are to be decided, but how far it has been possible and how many cases are decided within the period stipulated under law? This does not mean that the Courts violate the law. It is shortage of Judges, staff, equipments, pendency, funds and other exigencies beyond the control of human being which come in the way and it is not possible to decide the cases within the stipulated period. The Courts of the Sub-Continent, particularly our part of the country, are confronted with the menace of huge pendency for the reasons stated above. Even if a Judge whole heartedly works for full working hours allowed under law without usual admissible break, or devotes overtime, for which he is not bound without allowance, unless one voluntarily foregoes the right, he can work only to the extent a human being can under the available facilities. Expecting beyond that would be at the cost of the law, rights of one or the other party or at the cost, of some other case or cost of his own life.
53. The nature of functions of trial Court are very tough, rather tougher than the job of superior Courts. It has to order issuance of notices, summons or warrants, as the case may be, hear and decide miscellaneous applications, bail and cancellation of bails, injunctions/receives etc. Depending upon the nature of case and jurisdiction, record the evidence, hear the arguments, decide the cases, order execution of decrees, respond to the notices of appellate Courts and administrative authorities and do other miscellaneous administrative works etc. Given the number of cases and facilities provided, the shortage of Judges and staff provided to the trial Courts, it is unjust to expect miracles from trial Judges. We cannot expect more from them, than we do. Having had the experience of being head of the subordinate judiciary, we place on record our appreciation for subordinate judiciary, that it works and works in a becoming manner. Door for improvement, however, remains always open and it needs to be kept up, what is needed is to improve, their working conditions, emoluments, facilities, above all, they need be given respect and dignity as they are one of us. They do the same job with less favourable conditions and environment and undue stressful circumstances. We have to rely on the record prepared by them.
So they have to be guided and believed like our dependent family members. Dispensation of justice is a corporate business. Everybody involved in it is responsible for his acts and commissions.
However trial Court's responsibility is greater and more onerous, and on it depends the edifice of the case in all the appellate Courts and hangs the fate of the parties. They have to be more compassionate, people friendly and procedural watch dogs. However it is a noble endeavour that cases should be expeditiously decided. But is must be in accordance with the law of the land.
54. It also appears from the perusal of the above para. Of the trial Court, that it has taken up the newly filed case for decision within forty days under direction of the learned Chief Justice. Every case of murder is a case, be it the new or old. Any direction, guidance or understanding for disposal of the murder case within forty days, which if at all allowed, applies to every case. The trial Court appears having misunderstood the direction or policy, if any. It is not just and reasonable to believe that the fresh filed murder cases should be decided within forty days and rest be left to their destiny. The policy of the judiciary throughout the world is that the cases are placed for hearing in order of their date of institution. The older cases ordinarily rank first followed up by the cases filed thereafter. It should not be like that as said:-- "Haste Makes Waste"
55. There can be no such policy and if there is any, it is against the accepted principles of justice, fair play, equity and good conscience.
56. In the cases of Qisas, Diyyat and Tazir, the Courts are also to keep in mind that the heirs of deceased or injured person, as the case may be, are competent to forgive comprise or compound the case or seek Diyyat.
57. Unwarranted haste, without giving the aggrieved person a chance to think about forgiving the accused as Allah ordains, may at times militate against the above mandate of Almighty Allah.
58. Given the social and cultural environment of our society, the heirs of a slain deceased do not come out of burden of rituals of Soyem, Qul, Daswan, Beeswan and Chaleeswan at least for forty days after one's death. No one is able to form any sound judgment in line with the dictates of Almighty Allah within the period. We have often noted that almost kiths and kins only are cited as witnesses in support of a report of occurrence, due to reluctance of natural and unbiaied witnesses to come forward; as against relatives, who have an interest. Most of the genuine cases ultimately fail due to it. Under the circumstances, these witnesses cannot be said to be composed, just or unbiased in deposition and their evidence is discarded.
59. Justice is a divine duty and divinity demands clemency, forbearance, patience, humility, magnanimity, temperateness, modesty, benevolence. This duty has to be pursued with perseverance and dignity. It has to be kept in mind that an accused is to be tried and prosecuted with due.' process of law not persecuted with inductiveness.
60. In view of above, we are constrained to declare the trial as vitiated and set aside the orders passed by the Shariat Court and District Criminal Court Muzaffarabad on 3-12-2004 and 5-10-2004 respectively. The case is remanded to the District Criminal Court Muzaffarabad for fresh trial in accordance with law as discussed above. It is brought to our notice that accused was on bail during trial, if so, he- will remain as such subject to same terms and conditions.
61. In view of legal position emerging from above discussion, we feel it expedient to direct as follows for observance by all the Courts in Azad Jammu and Kashmir that:--
(1) The cases shall be taken up for ,trial, hearing and decision in order of pendency, however, if it is otherwise inevitable, reasons shall be recorded for it;
(2) trial in criminal cases shall be completed within reasonable time by strictly following the procedure laid down in Chapters XX and XXII-A of the Code of Criminal Procedure, as the case may be, irrespective of any direction otherwise;
(3) witnesses in criminal cases shall be called after the accused is charge-sheeted, and trial shall continue till the entire evidence is recorded, unless reasonable circumstances duly recorded otherwise warrant;
(4) in the cases of Qisas, Diyyat or Tazir, if the parties seek adjournments for negotiating compromise, Court shall allow reasonable time for it, failing which trial shall be concluded and case decided within a reasonable time from the date of conclusion of trial; and
(5) the trial for the purpose of this order shall be deemed to have commenced from the date when the trial starts after taking cognizance.