1. ' SARDAR SAID MUHAMMAD KHAN, J.---This is an appeal against the order of the Shariat Court dated 11-4-1987, whereby the appeal was accepted.
2. ' A preliminary objection was raised by the learned counsel for the respondent that the appeal was incompetent because only the State was competent to file an appeal against an order of acquittal.
3. ' The question as to whether an appeal against an order of acquittal passed by the Tehsil Criminal Court, District Criminal Court or the Shariat Court was competent by the complainant or any other aggrieved person or it was only the State which could prefer an appeal against any such order.
4. Some of the points were not directly involved in this appeal but as the same were subject of controversy in some other appeals, the arguments were heard in some detail and all aspects regarding the right of appeal under section 25 of the Islamic Penal Laws Act, 1974, were considered.
2. The question which needs to be resolved is as to whether in view of the provisions contained in the Islamic Penal Laws Act, 1974, (as amended from time to time) an appeal, in case of acquittal, is competent by the complainant to the District Criminal Court, the Shariat Court and to this Court respectively or only the State has right of appeal against such order. For appreciating the point in controversy it would be expedient to reproduce the relevant provision contained in the Islamic Penal Laws Act, 1974, as amended from time to time. Originally section 25 of the Islamic Penal Laws Act was worded as under:-- {{URDU TEXT}} ' Initially there existed no Tehsil Criminal Courts and Shariat Court. However subsequently the said Courts were established by virtue of law and consequently the necessary amendments were made from time to time in section 25 of the Islamic Penal Laws Act, 1974, regarding appeals and revisions to the District Criminal Court, Shariat Court and to this Court. Consequently, subsections (1) and (2) of section 25 were amended as under -- {{URDU TEXT}} ' Finally section 25 was further amended whereby subsections (1) and (2) were substituted as under:- {{URDU TEXT}} {{URDU TEXT}} ' The perusal of the above provisions would reveal that neither in the original Act of 1974 not in any subsequent amendment, the 'right of appeal' was stipulated in terms of an order of 'conviction' or any order of 'acquittal'. The right of appeal was given against the 'decision' of the Tehsil Criminal Court and District Criminal Court etc. Even in the original provisions as contained in subsection (2) of section 25, it was not stipulated that the right of an appeal against the order of acquittal was available only to the State. The phraseology used in subsection (2) of section 25 as originally worded was as under:-- {{URDU TEXT}} ' Subsection (1) of section 25 did not make distinction between the right of an appeal against the order of an acquittal or an order of conviction. Subsection (2) only envisages that the Government can direct the Public Prosecutor to file an appeal in case of acquittal and in that case the period of limitation would be ninety days and not thirty days as was stipulated in case of subsection (1) of section 25. In other words the appeal against an order of District Criminal Court could be preferred not only by the State but by the complainant, irrespective of the fact whether the order was that of conviction or acquittal. Originally subsection (2) of section 25 only stipulated that in case of appeal against the order of acquittal passed by the District Criminal Court, the period of limitation for government would be 90 days and not thirty days, as was the case under subsection (1) of section
25. Subsequently, subsections (1) and (2) of section 25 were amended in terms as indicated above, but again no restriction was placed in subsection (1) that an appeal was competent only against the order of 'conviction' and not the order of `acquittal', nor it visualized that the right of appeal was available to a particular person, i.e,, accused or the State. The right of appeal was given against the 'decision' generally. However, subsection (2) of section 25 stipulated that the right of appeal against an order of acquittal passed by the Tehsil Criminal Court was to be exercised within the period of ninety days. Subsection (2) did not detract from the right of appeal which was available to the accused or the complainant or the Government under subsection (1) of section 25.
5. Subsequently, by another amendment, the period for filing appeal against the order of the District Criminal Court was enhanced to six months in subsection (1) of section 25 and original subsection
(2) was deleted and was substituted by a new subsection whereby provision for lodging appeal against an order of acquittal passed by the Tehsil Criminal Court was made.
6. ' Evidently, the appeal against the order of acquittal or conviction could be preferred by any aggrieved person, by the complainant or by the Government. Had the law giver intended that the appeal in case of acquittal by the Tehsil Criminal Court could only be filed by the Government, it would have said so in clear terms, especially so when previously the original provision in subsection (2) to the effect that Government could direct the Public Prosecutor to file an appeal against the order of acquittal passed by the District Criminal Court was deleted. Thus, in our view, the original provision incorporated in subsection . (2) of section 25 that the Government could file and appeal against the order of an acquittal or subsequent provision that an appeal against the order of acquittal of the Tehsil Criminal Court was to be preferred within six months did not debar the complainant to file an appeal against an order of acquittal under section 25 of the Islamic Penal Laws Act.
7. ' It is settled principle of law that while interpreting a statutory provision words or phrases are to be assigned their ordinary meanings unless the same are defined in the relevant law; besides no word or phrase should be added to or substracted from the statutory provisions. Had the law-makers intended that the appeal in case of an order of acquittal was not competent except by the Government, it would have expressed its intention in clear terms. Besides, there would have been a distinction . Between the right of appeal against an order of conviction and acquittal. The original provision contained in subsection (2) of section 25 to the effect that the Government could direct the Public Prosecutor to file an appeal in case of order of acquittal appears to have been incorporated to give an extended period of limitation of ninety days as against to period of thirty days stipulated in subsection (1) of section 25. The aforesaid view is further supported by the fact that subsequently when subsections (1) and (2) were substituted, the period of limitation for filing an appeal under subsection (1) of section 25 was retained but the provisions that an appeal against the order of acquittal could be filed by the Public Prosecutor on the direction of the Government were omitted; similarly it was not envisaged under subsection (2) that an appeal against the order of acquittal passed by the Tehsil Criminal Court could only be filed by the Government. The arguments advanced by the learned counsel for the respondents that as there is no specific provision for filing an appeal against an order of acquittal in the Islamic Penal Laws Act, the provisions contained in section 417, Cr.P.C. Are to be resorted to is not tenable for the simple reason that section 25 clearly stipulates that an appeal against the 'decision' of the District Criminal Court, Tehsil Criminal Court and the Shariat Court, as the case may be, is competent. It does not visualize that it is competent only in case of conviction or it is not competent against an order of acquittal. The plain meanings conveyed by the phrascology employed in section 25 of the Islamic Penal Laws Act cannot be restricted by surmises or conjectures. The intention of the law giver is to be gathered from actual words used and not on the basis of extraneous considerations or by reading the words or phrases which are not there.
8. ' The scheme of the Criminal Procedure Code is different from that of Islamic Penal Laws Act.
9. Section 404 of the Cr.P.C. Says that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. The aforesaid provision restricts the right of appeal. Thus, an appeal against the order of conviction or acquittal is only competent as provided in Chapter XXXI of the Cr.P.C. The provisions contained in sections 404 to 416, Cr.P.C. Stipulate appeal against orders of conviction; only section 417, Cr.P.C.
10. Envisages appeal against an order of acquittal by the State.
11. ' Thus the scope of right of appeal under Cr.P.C. Is restricted as compared with the said right under the corresponding provisions contained in Islamic Penal Laws Act, 1974. The provisions contained in section 25 of the Islamic Penal Laws Act, 1974, postulate an unrestricted right of appeal irrespective of the fact whether the order is that of conviction or acquittal. The word 'acquittal' used in subsections (1) and (2) of section 25 of the Islamic Penal Laws Act cannot be interpreted to mean that the right of appeal is available only against the order of conviction and not acquittal; the word `acquittal' is . Comprehensive enough to include the case of acquittal and conviction and scope of the right of appeal cannot be narrowed down by resorting to the scheme of the Criminal Procedure Code. Moreover in cases of `Qisas' falling within the ambit of Islamic Penal Laws Act, 1974. The Government under section 27 is not empowered to pardon or remit the sentence awarded under the provisions of the said Act. Needless to say in case of punishment of `Diyat' the same is to be paid to the heirs of the deceased or the persons injured, as the case may be. Thus, in view of the scheme of the Islamic Penal Laws Act, it cannot be said that the right of appeal in case of acquittal is available to the State and not to the complainant or any other aggrieved person. Therefore, I am not impressed by the argument that there being no specific provision regarding the right of appeal in case of an acquittal, one has to fall back on the provisions contained in section 417, Cr.P.C. The distinction between the right of appeal against an order of acquittal and conviction envisaged in the Criminal Procedure Code is not recognized by the provisions contained in the Islamic Penal Laws Act, 1974. Thus, I repel the contention that a complainant or an aggrieved person is debarred from preferring an appeal against an order of acquittal.
12. 'The next question which falls for determination is as to whether an appeal against the judgment of the Shariat Court is competent to this Court. It may be stated at the very outset that the appellate jurisdiction of this Court is governed by the provisions contained in section 42 of the Interim Constitution Act, 1974. The provisions contained in section 417, Cr.P.C. Are not relevant for the purpose of appeal against the judgment of the Shariat Court to this Court. A reference may be made to P.L.D. 1964 SC 26, wherein it has been held that an appeal to the Supreme Court is not governed by the provisions contained in Cr.P.C. Under subsection (2) of section 42 of the Interim Constitution Act, an appeal is competent to this Court if the same is provided by any other law. In the instant case an appeal, as has already been pointed out, is competent to this Court under section 25 of the Islamic Penal Laws Act, irrespective of the fact whether the order is that of conviction or acquittal. Thus, the contention that only the State is competent to file an appeal to this Court against an order of acquittal in view of the provisions contained in section 417, Cr.P.C. Has no substance and is hereby repelled.
13. ' In the light of what has been stated above I overrule the preliminary objection and hold that appeal is competent. Notices shall be issued to the learned counsel for the parties to address arguments on merits, on the date fixed for hearing.
14. ' RAJA MUHAMMAD KHURSHID KHAN, C.J.---I have had the advantage of going through the judgment prepared by my learned brother Mr. Justice Sardar Said Muhammad Khan.
15. ' After giving my dispassionate thought to the finding recorded by the learned Judge, I could not persuade myself to agree with the learned Judge that the appeal against the judgment of Tehsil Criminal Court to the District Criminal Court and thereafter to the Shariat Court, to question the acquittal of Tahir-ur-Rehman, respondent herein, for an. Offence under section 5 of the Islamic Penal Laws (Enforcement) Act, 1974, could competently be rolled in by the complainant or a private party under the relevant provisions of the Islamic Penal Laws (Enforcement) Act, 1974. _My-reasons are as under:--
(a) The important question involved and posed is as to whether under the provisions of section 25(2) read with section 32(2) of the Islamic Penal Laws (Enforcement) Act, 1974 (hereinafter to be referred as the Act), an appeal against the acquittal order recorded by the Tehsil Criminal Court to the District Criminal Court and from the District Criminal Court to the Shariat Court could competently be moved by the complainant or any aggrieved party or it is only the State's competency to do sO.
16. ' To have a view of the matter in its true perspective, the provisions in the Act, as amended from time to time, need to be reproduced. The provisions initially enacted were as under:- {{URDU TEXT}} ' Thereafter, section 25 of the Act was amended as under:- ' After some time again subsections (1) and (2) of section 25 of the Act were substituted as under:- - ' It is obvious that the controversy is to be resolved on the basis of the above provisions of the Act.
17. ' Mr. Mujeeb-ur-Rehman, the learnd counsel for the appellant, has contended that the Act is a self- contained Code. Section 25 of the Act admits of no restriction that an appeal in case of acquittal is competent only by the State and not by a private party. The learned counsel also argued that initially when the Act was promulgated in 1974, there was a provision that in case of acquittal by the District Criminal Court the State may direct the Public Prosecutor to file an appeal to the High Court but subsequently that provision was changed through an amendment and the relevant provision now contained in section 25 of the Act does not make any distinction in the right of appeal against the order of acquittal or conviction. In his view the provision contains no bar for the complainant to lodge an appeal. In the circumstances, he contended, the provisions contained in section 417 of the Code of Criminal Procedure have no bearing to the facts of the instant case. He further argued that the appeal to this Court is competent in view of the provisions contained under section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which reads:-- "Subject to the provisions of this Act, the Supreme Court of Azad Jammu and Kashmir shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law." ' and stipulates in clear terms that the appellate jurisdiction could also be invested in this Court by any other law and since an appeal is competent to' this Court against the judgment of the Shariat Court irrespective of the fact that the same was against the, order of acquittal or conviction, the provisions of the Code of Criminal Procedure cannot be attracted in regard to appeal to the Supreme Court.
18. ' The learned counsel appearing on behalf of respondent, Ch. Muhammad Taj, has countered the argument advanced on behalf of the appellant and contended that section 25(2) of the Act does not specifically visualize that in case of acquittal, the private party is competent to prefer an appeal, therefore, the provisions of section 417(1), Cr.P.C., were rightly made applicable by the Shariat Court within the meaning of section 32(2) of the Act which says that if there is no clear provision on a particular matter in the Act, the provisions contained in the Code of Criminal Procedure would apply to cases tried under the Act.
19. ' I have considered the arguments and am of the view that the argument addressed at the Bar by the learned counsel for the appellant, that the appeal before the Supreme Court by the complainant or any other aggrieved party is competent has substance. The Supreme Court, under the provisions of section 42(2) of the Azad Jammu Kashmir Interim Constitution Act, 1974, is clothed with the jurisdiction as is or may be conferred on it by the Constitution Act or by or under any law.
20. Since an appeal is provided to the Supreme Court against the judgment of the Shariat Court against an order of acquittal and conviction, the provisions of Code of Criminal Procedure cannot be attracted in regard to the appeals to the Supreme Court. I agree with the learned Judge that in view of this statement of law, the appeal under the Interim Constitution Act to the Supreme Court by an acquittal or conviction order is even competent by the complainant or any other aggrieved party.
(b) Coming to the question as to whether the complainant or a private person is competent to call in question the acquittal order passed by the Tehsil .Criminal Court or the District Criminal Court, it may be stated that there is no cavil that at the relevant time when section 25 of the Act was amended, an appeal against the order of acquittal was competent to the District Criminal Court.
21. The aforesaid appeal was pending in the District Criminal Court when the law was amended to contain the provision that the appeal against the order of acquittal passed by the Tehsil Criminal Court would be competent before the Shariat Court. I agree with the learned Judge that the right of appeal is a substantive right and the same cannot be regarded as a right of procedural nature.
22. Until and unless such right is taken away retrospectively it would not affect the jurisdiction of the Court to dispose of the appeals pending at the time of amendment according to law which was on statute book before the amendment. This view we have in Ghazi v. The State (PLD 1962 Lah.662), Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and Khairpur Divisions (PLD 1962 Kar.285) and Jamshed Ahmad Khan v. Aurangzeb Khan (PLD 1964 Pesh.250).
23. ' I am in complete agreement with the statement of law in the aforesaid authorities and hold that during the pendency of appeal, the amended law did not debar the District Criminal Court to decide the acquittal appeals which had been lodged on the basis of the unamended law.
24. ' The important question which still faces us and calls for determination is as to whether in view of the provisions contained in the Act, as amended from time to time, an appeal in case of acquittal order recorded by the Tehsil Criminal Court, District Criminal Court or the Shariat Court, is competent only by the State or the complainant or any other aggrieved person is also eligible to move such an appeal.
25. ' I have already held that the appeal to this Court, by the complainant, is competent as the provisions of the Code of Criminal Procedure do not apply in regard to appeals to the Supreme Court. I arr., however, of the considered view that the appeal by the complainant or any other aggrieved party to the District Criminal Court or the Shariat Court is not competent against the order of acquittal as under the provisions of section 25(2) read with section 32(2) of the Act, it is only the State who can lodge such an appeal. It is, of course, correct that under the amended section 25(2) of the Act referred to above an order of acquittal passed by the Tehsil Criminal Court has been made appealable before the Shariat Court within six months from the date of passing of the order but in my view this provision simply determines the right to and forum of appeal against the acquittal order and it in no way determines the competency of persons to lodge such appeals.
26. The law under the Code stipulates that when the Act fails to provide for any specific matter, section 32(2) of the Act which reads:-- {{URDU TEXT}} ' comes into play and matter would be governed by the relevant provisions of the Code of Criminal Procedure. It is to be noticed that section 25 of the Act is silent about the persons competent to move an appeal against the 'order of acquittal. Therefore, we have to fall back upon the provisions of section 32(2) of the Act and switch on to the relevant provisions of the Code of Criminal Procedure for the purpose of determination of the above question.
27. ' To attain clarity in the matter, I may, with advantage, here again reproduce the relevant provisions of the Act and that of the Code of Criminal Procedure.
28. ' Section 25(2) of the Act reads as under:-- {{URDU TEXT}} ' Section 32(2) of the Act reads as under:-- {{URDU TEXT}} ' The combined reading of both the sections of the Act leaves no ambiguity that when a matter is not provided for under any provisions of the Act, the same is to be resolved under section 32(2) of the Act.
29. ' Section 417(1) of the Code of Criminal Procedure enacts as under:-- "Subject to the provisions of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court".
30. ' It would appear that under section 417(1) of the Code of Criminal Procedure in case of appeal against an order of acquittal not only the forum to which it would lie but also the person who is entitled to file it has been specifically mentioned. Unlike the provisions contained under section 417, Cr.P.C., section 25(2) of the Act, as said elsewhere, only determines the right to appeal and forum to which an acquittal appeal is competent. Thus, the person eligible to lodge an appeal not having been determined, is left open. This omission, however, is clarified, cured and governed under the provisions of section 32(2) of the Act which, inter alia allows application of the provisions of section 417, Cr.P.C., under which the Government alone has been conferred the right to move an appeal against the order of acquittal. If section 25(2) of the Act is construed to mean that any person has the right to go in appeal against the order of acquittal, then any person can also tile an appeal against the order of conviction under subsection (1) of section 25 of the Act irrespective of the fact whether he is or is not a convicted person in the case. The conclusion would not sound reasonable because no person other than the one who has been convicted in a case has a right to prefer an appeal against such a conviction which is an undisputed legal position under the provisions of sections 407, 408 and 410 of the Code of Criminal Procedure, according to which only a person convicted has been given right to prefer an appeal to the competent Court.
(c) It admits of no doubt that the basic principle of interpretation of law is that words are not be employed in a statute if there is no ambiguity. No doubt, at time absurdity or anomaly, if any, may be removed by applying some words to fulfil the intention of the law-makers but such a situation is.Not available here. I agree with the learned Judge that neither under section 25 of the Act, as originally worded, nor in any subsequent amendment the right of appeal of a private party is barred by express words. I also agree that there is no distinction between the right of appeal in case of order of conviction and order of acquittal. But the legal position is that the provision (section 32(2) of the Act) is clear on the issue to say that when the right of appeal is not given under any provision of the Act, the same omission is to be met or cured under the provisions of section 32(2) of the Act.
(d) My learned brother is of the view that initially section 25(2) of the Act only stipulated that State could be directed to file an appeal within six months and the amendment later on made did not take away the right of a private party to file appeal against the order of acquittal, as only forum of appeal was changed from the District Criminal Court to Shariat Court.
31. ' I am afraid I cannot agree with the learned Judge. The Provisions prior to the amendment only stipulated that it was State's prerogative and privilege to lodge an appeal. The State, thus, was at liberty to exercise such a right or decline to do so. The word "may" connotes the discretion and Prerogative of the State to exercise the discretion which discretion the State may or may not exercise. But if the State decides to exercise the discretion, then the Public Prosecutor could be directed to lodge an appeal. Thus, this provision can in no way be interpreted to mean that it also conferred powers to a private party to lodge an appeal; it rather excluded the right of a private party to lodge an appeal which right had only been allowed to the State and none else. Therefore, my view is that under the provisions of subsections (1) and (2) of section 25 of the Act, the complainant or any other party has no right of appeal against the order passed by the District Criminal Court irrespective of the fact whether the same was against the order of acquittal or conviction.
32. (d-1) It is to be remembered that omission in a statute cannot, as a general rule, be supplied by construction. Thus, if a particular word is omitted from the terms of a statute, even though such a word is within the obvious purpose of the statute, the Court cannot include the omitted word by supplying the omission. This is equally true where the omission was due to the failure of the Legislature to foresee a missing case. To permit the Court to supply the omission in a statute would constitute an encroachment upon the field of Legislature and naturally such a recourse is not permissible and should always be avoided.
33. ' In the instant case since there is nothing in section 25 of the Act that the complainant is competent to lodge an appeal, if we allow the word "complainant" to be employed in section 25, it would positively amount to enact law which would be construed as an encroachment upon the field of Legislature, especially, when such an omission can be rectified under section 32(2) of the Act.
(e) I am not oblivious .Of the fact that in some cases it has been held that it is the intention of the Legislature which constitutes the law and since the primary purpose of construction is to ascertain that intention, such intention should be given effect even if it necessitates the supplying of omissions, provided, of course that this effectuates the legislative intention. Some decisions seem to indicate a trend in this direction and allow words omitted by oversight to be supplied if the statute is otherwise meaningless. Turner v. State (40 Ala 21) owns this view. But here, as said earlier, the statute's meaning is clear and explicit in view of the provisions of section 32(2) of the Act which clearly enacts that where something is missing or omitted in the Act on a particular matter, we have to fall back on the provisions of the Code of Criminal Procedure and the Pakistan Penal Code within the meaning of section 32(2) of the Act. Therefore, where the statute's meaning is clear and explicit the word cannot be interpreted. Smith v. State (66 Mad. 215) owns this view.
34. ' The intention of the Legislature can be ascertained after reading the statute as a whole and this is always a safer rule to follow. To this rule of interpretation all others are subordinate. The Commissioner of Income Tax v. Messrs Hossen Kasam Dada (PLD 1961 SC 375) owns this view. In this case it has been observed:-- "..We would have thought that the conventional method of ascertaining the intention of the Legislature after reading the statute as a whole was more likely to lead to the discovery of its true intent and is always a safer rule to follow".
35. ' In view of the above state of law, 'to get at the intention of law-makers, it would be necessary to read section 25 along with section 32(2) of the Act. This is important because section 25 does not employ the words "complainant" or "State" and this omission creates an uncertainty in regard to the person's competency to lodge an appeal against acquittal and the omission is fairly treated and resolved under the provisions of section 32(2) of the Act.
(f) One of the important rules of interpretation of the statute is that every word used in the statute is intended to have some effect and no word is to be considered as superfluous or redundant. This statement of law we find in M.A. Khuhro v. The Federation of Pakistan (PLD 1950 Sind 49). It has been observed in that case:-- " One of the rules of interpretation of the statute is that every word used in the statute is intended' to have some effect and be of some use and no word is to be considered as superfluous or redundant."
(g) It is also important that while interpreting a statute the Court should presume that no part of it was intended to be meaningless and that the provisions of a statute could not have been intended to operate against each other. Therefore, the Courts lean against construction which would make some words unnecessary in the statute. Model Industries v. Rambau Narain Patil (AIR 1946 Nag. 152) owns this view. It has been held in this case that "Courts lean against construction which make words unnecessary in Act of Parliament".
36. ' My learned brother Mr. Justice Sardar Said Muhammad Khan has employed the word "complainant" in section 25 of the Act, which is not permissible. The law is that a Court is not entitled to read words into an Act of the Legislature unless a clear reason for it is to be found within the four corners of the Act itself. Our duty is neither to add to nor to take from a statute anything unless there are good grounds for thinking that Legislature intended something which it fails precisely to express. Where no such inference is possible words cannot be added in the provisions of the statute. It is not permissible to make addition or alteration or restore causa omissus in the statute without a suitable amendment. This view prevailed in Dad Muhammad Khan v. Bassa (PLD 1965 Lah.77) and Khizar Hayat v. The Commissioner Sargodha Division (PLD 1965 Lah.349).
37. ' In Dad Muhammad Khan v. Bassa (PLD 1965 Lah.77) it has been observed:-- "A Court is not entitled to read words into an Act of the Legislature unless a clear reason for it is to be found within the four corners of the Act itself. Its duty is neither to add to, nor to take from a statute anything unless there are good grounds for thinking that the Legislature intended something which it has failed precisely to express. No such inference is possible in the present case."
38. ' In Khizar Hayat v. The Commissioner, Sargodha Division (PLD 1965 Lah.349), it has been held that the Courts cannot extend a statute to meet a case for which provision has clearly and undoubtedly not been made. The Courts have no power to fill the gap in a statute.
(h) The reason at the back of the rule of a causa omissus is found in the principle that if the Court attempts to supply that which the Legislature has omitted, there is considerable danger that it may invade the legislative field. It is not easy to determine whether the omission was intentional or not and where it was inadvertent, an attempt to supply the omission by including the omitted case generally would operate to add to a statute a meaning not intended by the Legislature, for, how can it be said that the law-makers intended to include something omitted. It would seem that the only time the omitted case might be included within the statute's operation, would be when the Legislature -intended to include it but actually failed to use language which would, on its face, cover the omitted case. The inclusion would be justified if from the various intrinsic and extrinsic aids, the intent of the Legislature to incorporate the omitted case, could be ascertained with a reasonable degree of certainty but not otherwise. This case has no such feature.
(i) Besides, since the purpose of construction is to ascertain the legislative intent, this constitutes the major step in the process of interpreting the statutes. In the instant case I do not find any good ground to add the ward "complainant" in section 25 of the Act in view of the provisions of section 32 of the Act.
3. The third rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made.
(j) I have discussed some ways by which the meaning of statutes are to be ascertained. The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be made of the context, and the subject-matter and purpose of the enactment. After the exhaustion of all intrinsic aids, if the legislative intent is still obscure, it is proper for the Court to consult the several extrinsic matters for further assistance and during the consideration of the various sources of assistance, further help may, of course, be found in the use of the numerous rules of construction.
(k) Before I part with the case, I would like to narrate the general principles of interpretation stated by the Supreme Court of Pakistan in a reference by the President under the, defunct Constitution of 1956 (PLD 1957 SC 219). The Supreme Court stated the general principles of interpretation and said:- - "1. The first object of the Court is to discover the intention of the author and that such in the statute or document.
2. The second rule is that the intention of the legislature in enacting a statute ought to be derived from a consideration of the whole enactment in order to arrive at a consistent plan. It is wrong to start with some a prior idea of that intention and to try by construction
4. The fourth rule is that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other part of the statute to which it may properly apply.
5. The fundamental principle of constitutional construction has always been to given effect to the intent of the framers of the organic law and the people adopting it.
6. Another elementary rule of construction of constitutional instrument is that effect should be given to every part and every word of the Constitution. Hence as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory.
7. The next rule in construing a constitutional provisions is that it is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. The best mode of ascertaining the meaning affixed to any word or sentence by a deliberative body is by comparing it with the words and sentences with which it stands connected, and a constitutional provision or a phrase to a constitutional provision must be read in connection with the context. Nosciture a Sociis is the rule of construction applied to all written instruments. Therefore, particular phrases of a Constitution must be construed with regard to the remainder of instrument and to the express intent of the constitutional convention in adopting it.
8. If there be any apparent repugnancy between different Provisions, the Court should harmonize them if possible. The rule of construction of constitutional law requires that two sections be so construed, it possible, as not to create a repugnancy, but that both be allowed to stand, and that effect be given to each."
(1) It would appear that one of the cardinal principles of interpretation is that: the law should be interpreted in such manner that it should rather be saved than destroyed. The law including the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts and the presumption should be that no conflict or repugnancy was intended by the framers. In interpreting the words of an Act actual words used in fact throw light about the intention of the law-makers and the other parts of the statute.
39. ' In the instant, ease section 25(2) of the Act is to be read in relation to the provisions contained Under section 32(2) of the Act. Since under section 25(2), the right of appeal and forum before which the appeal is competent against an order of Tehsii Criminal Court and the District Criminal Court is only created, the persons eligible to move 'an appeal are to be ascertained under the provisions of section 417, Cr.P.C., in view of the provisions contained under section 32(2) of the Act.
40. The Legislature in its wisdom did not provide for the persons competent to lodge an appeal under the provisions of section 25(2) of the Act. It is no lacuna as the situation is fairly dealt with under section 32(2) of the Act. But even if it may be a lacuna, such lacunas are not met,nt to be removed by the Courts as it is the duty of the Court only to try and harmonize the various provisions of an Act passed by the Legislature. It is certainly not the duty of the Courts to stretch the words used by the Legislature to fill in gaps or omission in the provisions of the Act. This would amount to make law which is beyond the province of the Courts.
(m) It is settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself. Therefore, to get at the intention of the Legislature, we have to read both the provisions of the Act, i.e, sections 25 and 32(2) together. We cannot read these sections in isolation. It should be remembered that the language used by the Legislature is the true depository of the legislative intent and the words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and the object of the Act itself.
41. Identical statement of law we find in Darshan Singh Balwant Singh v. The State of Punjab (AIR 1953 SC 83) and Poppatlal Shah v. The State of Madras (AIR 1953 SC 274).
42. ' In Darshan Singh Balwant Singh v. The State of Punjab (AIR 1953 SC 83) it has been held:-- "The language used oy the Legislature is the true depository of the legislative intent, and words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself."
43. ' In Poppatlal Shah v. The State of Madras (AIR 1953 SC 274), it was observed:-- "It is settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase, or sentence is to be considered in the light of the general purpose and object of the Act itself. The title and preamble, whatever their value might be as aids to the construction of a statute undoubtedly throw light on the intent and design of the Legislature and indicate the scope and purpose of the legislation itself."
44. ' It is, therefore, legitimate to say that in order to prevent conflict between two sections, the two sections must be read together and the language of one interpreted and where necessary modified by that of the other.
45. In this way it may in most eases be found possible to arrive at a reasonable and practical construction of the language of the sections so as to reconcile the respective notion they contain and give effect to all of them. We also find support in Mada Nagaratnam v. Puvvada seshayya (AIR 1939 Mad. 361). It has been observed in this case:-- "In order to avoid a conflict between two sections, they must be read together and the language of one interpreted and where necessary modified, by that of the other. In this way it may in most cases be found possible to arrive at a reasonable practical construction of the language of the sections so as to reconcile the respective powers they, contain and give effect to all of them."
46. ' It may be noted that the Courts are not concerned with the reasons or policy of the Act and they have to give effect to the plain meaning of the section or to its expressed intention. They have no means of finding out its implied intention. So was held in Pratap Singh v-. B. Gulzari Lal (AIR 1942 All 50). It was observed in this case:-- "The Court is not concerned with the reason or po+icv of the Act and it has to give effect to the plain meaning of the section or to its expressed intention and it has no means of finding out its implied intention. "
47. ' As said earlier the Court has to interpret the law as it has been enacted and not as what it would have been. Harkishan Das v. Emperor (AIR 1944 Lah.33) owns this view. It has been held in this case:-- "The Court has to interpret the law as it has been enacted and not as what it would have been if certain provisions which are complementary to the provisions, the constitutionality of which is in question, had not been enacted."
48. ' Therefore, in interpreting a statute one is to see whether a reasonable meaning can be given after reconciling the various provisions contained in different sections and not to read one section independently of all other sections and give any unreasonable interpretation. So was held in Commissioner of Income Tax v. Messrs. Hoosen Kasam Dada (PLD 1960 Dacca 506) wherein it was held that one section in a statute should not be read independently of all others and given unreasonable interpretation.
49. ' It, thus, admits of no doubts that all the sections of an Act or statute are to be read together to know the intention of the law-makers. In the present case if we import the words "complainant" or "aggrieved party" in section 25, then section 32(2) of the Act would become meaningless. Besides, the Courts cannot modify the Legislature's defective phrasing of the Act, they cannot add, amend or by construction make up the deficiencies which are left there. Where an omission in an Act flowed from forgetfulness of the draftsman or was intentional it is no concern of the Courts to make up such deficiency. The Legislature must be intended to mean what it has plainly expressed and consequently there is no room for construction. The underlying principle is that the meaning and intention of a statute must he collected from the plain and unambiguous expressions used therein rather than from any notion which may be entertained by the Court as to what is just or expedient.
50. Sardar Zorawar Singh v. Jasbir Singh (AIR 1938 Lah.606) owns this view wherein it is said:-- "The legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. It matters not in such a case what the consequences may be. Where. By the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient."
(n) What about the hardship and injustice is the next question to be considered. Hardship and injustice are to be removed in a statute by the Legislature and not the Courts and a law cannot be interpreted in a different way simply on the ground of hardship. Therefore, the consideration of hardship or injustice would never weigh with the Courts while interpreting a statute. So was held in Abdul Ghafoor v. The State (PLD 1965 Quetta 10).
(o) I also cannot subscribe to the view of the learned Judge that in Warn there is no restriction for lodging an appeal by the complainant or any other aggrieved party.
51. ' The difficulty is that at present we are governed by the codified law: We have to interpret a law as it is and not as, it ought to have been. There is a prima facie presumption that the Legislature did not intend to make substantial alteration in the -law beyond what it explicitly declares either in express terms or by clear implication or in other words beyond the immediate scope and object Of the statute, and an intention to cut down or abolish existing right must be clear and manifest.
52. Khudabur v. Punjo (AIR 1930 Sind 265) owns this view. It has been observed in this case:-- "There is a prima facie presumption that the legislature does not intend to make any substantial alteration in the law beyond what, it explicitly declares either in express terms or by clear implication, or, in other words beyond the immediate scope and object of the statute, and an intention to cut down or abolish existing rights must be clear and manifest, and for this purpose the previous history of the legislation may be looked into."
53. ' For the above stated reasons I hold that the appeal before the Shariat Court against the acquittal order passed by a Tehsil Criminal Court or by a District Criminal Court is incompetent.
54. ' ORDER OF THE COURT: ' In the light of what has been stated above, since there is difference of opinion with regard to the competency of the acquittal appeal before the District Criminal Court or the Shariat Court, the opinion of the senior (the Chief Justice) all prevail. However, we arc one on the point that the appeal, for the reasons stated in the order, before the Supreme Court is competent by the complainant or any other aggrieved party. Notices shall issue to the learned counsel for the parties to address arguments on merits. To come up for arguments on 21-2-1990.