Syed Manzoor Hussain Gilani, J.--This appeal is filed against the order passed by a learned single Judge of the Shariat Court at Mirpur on 30.11.2005 whereby appellants Muhammad Riaz and Muhammad Fayyaz are sentenced to death on the appeal filed by Raja Fazal Hussain Rabbani and his wife Tahira. Rabbani against the judgment passed by the District Court of Criminal Jurisdiction, Mirpur on 28.6.2005, who had sentenced them to ten years rigorous imprisonment each under Section 396 APC and rupees thirty thousand fine each besides sentence of ten years rigorous imprisonment awl rupees ten thousand fine each under Section 455 APC and six months rigorous imprisonment under Section 13 of Arms Ordinance, 1965. Appellant No, 3 Atif Hussain is sentenced to ten years rigorous imprisonment under Section 302(C) read with Section 34 APC besides upholding the conviction passed by the trial Court under other offences i,e, Sections 396 and 455 APC and 13 of Arms Ordinance, 1965.
2. The appeal against the order in this Court is filed against the State as a sole respondent, while the State had not filed any appeal against the order passed by the District Court of Criminal Jurisdiction, Mirpur.
3. A concise statement was filed in this Court by Raja Fazal Hussain Rabbani and Mrs. Tahira Rabbani, parents of deceased Ma'uz Rabbani on 24.3.2006 with the permission of the Court. An objection is taken to the maintainability of the appeal by the interveners that as the appeal on which the sentence against Appellants Nos, 1 and 2 is enhanced by the Shariat Court, was filed by them and not by the State, hence they alone were the necessary party before the Supreme Court who had not been arrayed as such and the appeal is not competent which is liable to be dismissed. To meet the objection, an application is filed on 10.6.2006 in this Court under Order XLIII, Rules 1, 3 to 5 of the Supreme Court Rules by the accused-appellants seeking permission for impleading Raja Fazal Hussain Rabbani and Mrs. Tahira Rabbani as respondents in the case.
Another application is filed on behalf of the accused-appellants for treating the appeal as a revision against the judgment of the Shariat Court if it is not found maintainable for any reason.
4. We have heard the learned Advocates for the parties at length on the preliminary objection and reply thereto. Mr. Muhammad Azam Khan, the learned Advocate for Raja Fazal Hussain Rabbani and his wife who objected to the maintainability of the appeal, contended that after judgment of the District Court of Criminal Jurisdiction Mirpur, the State did not choose to file the appeal and accepted the decision of the District Court of Criminal Jurisdiction while Raja Fazal Hussain Rabbani and Mrs. Tahira Rabbani who are the parents of deceased Ma'uz Rabbani filed the appeal before the Shariat Court against the judgment of the District Court of Criminal Jurisdiction, Mirpur for enhancement of the sentence passed by the Court. The appeal filed by them was accepted by the Shariat Court and consequently sentence was enhanced convicting Appellants Nos, 1 and 2 to death instead of ten years rigorous imprisonment. According to the learned Advocate they are the sole heirs of the deceased and were the only necessary party in the case who have not been impleaded as such hence the appeal is incompetent Elaborating his arguments he contended that the power of the President to pardon review or commute the sentence in case of Visas' under Section 10 of the AJK Islamic Penal Laws Act has been curtailed and this power has now been vested in the heirs of the deceased and similar is the spirit of Section 305 of the Penal Code in view of which it is the heirs of the deceased who are necessary party not the State because the right devolves upon the heirs of the deceased instead of the State in all cases of Visas'. Contending further he maintained that it was the parties before the trial Court who are the competent and necessary party in appeal before the Court and not the one which is not a necessary party or filed appeal or rejoinder before the lower Court. The learned Advocate relied upon the following authorities:--
1. The State us. Khizer Hayat and others [PLD 1991 AJ&K 76].
2. Abdul Karim & 6 others u. Tahir-ur-Rehman [PLD 1990 PSC 735].
3. Saar Muhammad Khan u. Muhammad Afsar Khan and 3 oth rs [1991 P.Cr.L.J. 508].
4. Syed Kanchan Ali v. Shahjahan and others [PLD 1962 Dacca 192].
5. Abdul Khaliq Khan v. Muhammad Afsar Khan & 4 others [1995 SCR 144], and
6. Azad Govt. of the State of Jammu & Kashmir v. Sarfraz Alam and others [1996 SCR 326].
5. Opposing the application filed by the appellants for impleading Raja Fazal Hussain Rabbani and the other as respondents and treating the appeal as revision, he contended that this amounts to allowing the appeal or revision against the order against which, the appeal can be filed within sixty days under the Islamic Penal Laws Act, under which the appeal is filed in the Supreme Court. He contended that the objection was taken well in time but the applications are filed much after that hence the applications are not maintainable and the appeal is liable to be dismissed. He placed reliance on a case reported as Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others [2000 SCR 70] on this point.
6. The learned Advocate appearing for the accused-appellants contended that the Code of Criminal Procedure or Islamic Penal Laws Act do not contain any provision as to who can be arrayed as party in such cases and in the absence of a legal provision the right of appeal cannot be curtailed simply for the reason that the heirs of the deceased are not arrayed as party.
'According to him unless the law provides so, the appeal cannot abate. Elaborating his arguments he contended that the sentence passed against the appellants is not of Visas' but is `Tazir' hence it is the State alone which was a necessary party as the right of `Tazir' against the accused is not vested with the heirs of the deceased but with the State alone. He also contended that appeal is a procedural right which cannot be denied to the appellants in the absence of a clear contrary provision' of law on the ground that a party is not arrayed as such. The learned Advocate placed reliance on the following authorities:--
1. Abdul Karim & 6 others v. Tahir-ur-Rehman [PLD 1990 PSC 735].
2. Referring Authority/Chief Secretary Azad Government of the State of Jammu & Kashmir v. Sardar Sikandar Hayat Khan [PLD 1982 SC (AJK) 112].
3. Zamin Shah v. The State [1987 SCMR 1853].
4. Exon Corporation and Esso Inc. v. Syed Nisar Ahmed Jafry and another [1994 SCM R 918], and
5. Haji Muhammad Sharif Khan and another v. Zahir Hussain Shah and another [1998 SCR 106].
7. We have considered the arguments and gone through the authorities cited by the learned Advocates for the parties. The only point which needs resolution in this case is as to whether the appeal is incompetent for the reason that the heirs of the deceased have not been arrayed as party in the case on whose appeal the sentence is enhanced by the Shariat Court, and not on the appeal of the State, which alone is arrayed as a respondent in this case.
8. Unlike civil laws, the Criminal Procedure Code or for that matter any other criminal law providing for filing an appeal to the Supreme Court or any other Court, does not provide as to who can be arrayed a party in appeal although an appeal can be filed by a person is aggrieved by the order.
Who could be joined as a respondent, is an open field. However, there can be no denial to the fact that a person who is interested in the result of the case and is likely to be affected by an order of the Court and had all along been contesting the case and has remained a party before the lower Court, has necessarily to be arrayed as a party.
9. It is admitted in this case that the accused-appellants had been convicted by the trial Court and sentenced to ten years rigorous imprisonment The State did not file any appeal against the sentence, neither sought enhancement. So, interest of State is no more existed. As against it, the heirs of the deceased-victim filed an appeal before the Shariat Court seeking enhancement of the sentence and the accused-appellants also filed an appeal for quashment of the sentence. The Shariat Court consolidating both, accepted the appeal filed by the heirs of the deceased Raja Fazal Hussain Rabbani and his wife, while the appeal filed by the accused-appellants was dismissed. The accused-appellants filed appeal against the order of the Shariat Court and impleaded the State alone as a respondent in the case, while the heirs of the deceased on whose appeal the sentence against them was enhanceci are not arrayed as respondents.
10. The appeal against the orders of the Shariat Court is filed under Section 25 of the Islamic Penal Laws Act, 1974 within sixty days of the judgment of the Shariat Court. As the State had not filed appeal before the Shariat Court hence there was no occasion for the State to file appeal against the decision before the Supreme Court neither could the State have any grievance or objection to the appeal filed by the accused-appellants as it did not contest the verdict of the District Criminal Court before the Shariat Court. Thus, the only party which has an interest and is likely to be affected is the legal heirs of the deceased who in any case is necessary party.
11. The offence of murder under Islamic Penal Laws Act now stands transposed to the Penal Code.
The right to waive or compound the offence of murder under Section 309 or 310 of the Penal Code is vested in the heirs/wall' of the deceased. Similarly, the `qatl-e-amd' is compoundable by the heirs of victim under Section 345 of the Code of Criminal Procedure. The `wali' is defined under Section 305 of the Penal Code as-- "(a) the heirs of the victim, according to his personal law; and (b) the Government if there is no heir."
In the case in hand the 'wall', of the victim are his parents Raja Fazal Hussain Rabbani and Mrs. Tahira Rabbani and they are the persons who had challenged the decision of the District Criminal Court before the Shariat Court. The Government/the State could be the 'wall' only if there was no heir. Thus, the only party necessary in this case was 'wall' of the deceased, not the State which has been impleaded as party in this case. It in other words means that there is no respondent in the appeal.
12. The contention of the learned Advocate for the appellants that the sentence passed against the accused-appellants is not of Visas' but of l'azie hence in the case of Tazir' the State also is the party not the heirs of the victim, is misconceived for the reason that the case is of `qatl-e-ainad' liable to Visas' irrespective of the fact whether the sentence of Visas' is passed or not. It is the nature of the case, not sentence, which is of essence. The `walayar in the case of murder is vested in the heirs of the deceased by law whatever sentence is passed by the Court. Government or the State does not matter in the case where the heirs of the deceased or victim are given this right to compound or waive. The above referred sections of the Penal, Code are clear on the point. These sections of the law are based on philosophy of Islamic Penal Laws where the primacy in the case of Visas',- Tazir' and Diyat' is vested in the 'wali Theirs of the deceased and not the. State, while in the case of murder before introduction of Islamic Laws, the State had the over-riding power in all the cases of murder etc. State is however bound to prosecute for and on behalf of the victims, as it is the responsibility of the State to protect the life, honour and dignity of its subjects. But it cannot waive or forgive the rights of the victims, which is not all I apt, . It is later only which can bargain not the former.
13. Even before the introduction of the Islamic Penal Laws, the rights of the heirs of the deceased in the case of murder were respected and carried into effect by the Courts. In the case of Syed Kanchan Ali v. Shahjahan and others [PLD 1962 Dacca 192] application for transfer of the murder case was filed by uncle of the deceased. The question arose as to whether the uncle was a party interested within the meaning of Section 526(3) and (8) of the Criminal Procedure Code. It was held that:-- "In our opinion, a person injured or aggrieved by the crime, a witness in the trial, an informant or a complainant on whose information the machinery of law is set in motion, would, under certain circumstances, come within the description of 'any party interested' within the meaning of Section 526, sub-sections (3) and (8), of the Code. The category stated above is by no means exhaustive.
Of course, a Public Prosecutor, a complainant or an accused will always come under the aforesaid description."
14.The Islamic Penal Laws relating to Visas' and Diyar were introduced in Azad Jammu and Kashmir in 1974. The Courts in Azad Jammu and Kashmir have given full effect to the Islamic principles of criminal jurisprudence in the matters of Visas' and `Diyat'. The legal heirs of the deceased have all along been accepted as the relevant and most necessary party in all the cases of -Visas' and `Diyat' and were thus given the right to prefer an appeal in such cases where they felt aggrieved, irrespective of Code of Criminal Procedure.
In the case of Abdul Karim & 6 others v. Tahir-ur-Rehman [PLD 1990 PSC 735] where objection was raised to the competence of an appeal filed by the complainant under Section 25 of the Islamic Penal Laws Act on the ground that the State alone could file the appeal, the contention was repelled holding that the complainant or any aggrieved person was competent to file the appeal.
In the case of Sardar Muhammad Khan v. Muhammad Afsar Khan and 3 others [1991 P.Cr.L.J. 508], it was held that 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 Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974. The appeal against the order of the District Criminal Court could be preferred not only by the State but also by a private person irrespective of the fact whether the order was that of conviction or acquittal. The complainant or aggrieved person was not debarred from preferring an appeal against the order of sentence.
In the case of State v. Khizar Hayat and others [PLD 1991 AJ&K 76] it was held that in trial of offences covered by the provisions of Islamic Penal Laws Act, the rules of procedure prescribed by the Code whenever come in conflict with the Injunctions of Islam are to be ignored and not to be strictly enforced. The order of acquittal triable under the provisions of Islamic Penal Laws Act could be challenged in an appeal by the complainant in addition to the State. Similar position was reiterated in the case of Abdul Khaliq Khan v. Muhammad Afsar Khan & 4 others [1995 SCR 144] and Haji Muhammad Sharif Kim and another v. Zahir . Hussain Shah and another [1998 SCR 106].
15.The provisions of the Islamic Penal Laws Act of Azad Jammu and Kashmir relating to Visas', `Diyat' and `Tazie now stands transposed to the Pakistan Penal Code. Sections 209 to 323 of the Penal Code carry out the spirit of the Sections 2 to 13 of the Islamic Penal Laws Act, 1974. The `wall/heirs of the deceased stand on a higher pedestal in the matters of `Qatar. So much so that the power of the President under Section 10 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to pardon, commute etc. the sentence in case of Visas' etc. are barred and the same are vested in the heirs of the deceased.
16.Reviewing the case in the light of the above position of law, it is the `wali/heirs of the deceased who are the only necessary party in the case in whose absence no effective judgment can be passed by the Court. State was not a party at all in the presence of the `wali' in view of the fact that the State had not filed an appeal against the judgment of the District Criminal Court. In the case of Azad Govt. of the State of Jammu & Kashmir v. Sarfraz Alam and others [1996 SCR 326] where Respondent No, 1 was struck off and an application was moved by the Government through which Respondent No, 2 was allowed to be deleted which was accepted and the result was that there was no respondent left in the case. It was held by the Supreme Court that in the circumstances of the case there being no respondent before the Court, the appeal was incompetent. Similar is the position in this case where the `wali' are not arrayed as party and the party arrayed in the case is not aggrieved and necessary, hence it practically amounts that the appeal is in vacuum which is incompetent.
17.The contention of the learned Advocate for the appellants that as the Code does not prescribe as to who is to be a party, hence appeal cannot be deemed incompetent is devoid of any force for the reason that the cases are fought between contesting and rival parties. It is not one sided affair.
Whoever under law is a necessary party i,e, whose legal interest would be adversely affected if order is against him or who had been a party before the lower forum has to be arrayed as a party, whether there is any specific legal provision in the Code to that effect or not. It is a common sense perception.
18.The contention of the learned Advocate for the appellants that as there is no provision obliging the appellants to array the legal heirs of the deceased as party, hence no finding of the Court while interpreting the law can operate retrospectively, is not tenable as it is a negation of the above law and authorities which are already in force. His reliance upon Exon Corporation and Esso Inc. v. Syed Nisar Ahmed Jafry and another [1994 SCM R 918], Habib Bank Ltd. v. The State and 6 others [1993 SCM R 1853] and Governor N.W.F.P. and another v. Gul Naras Khan [1987 SCM R 1709] and Referring Authority/Chief Secretary, Azad Government of the State of Jammu & Kashmir v. Sardar Sikandar Hayat Khan [PLD 1982 SC (AJK) 112], is misconceived. These cases relate to the right of appeal which is definitely available to the appellants, while the objection raised to the maintainability of appeal is regarding competence of appeal for there being no respondent, and particular for non- impleading of the real respondents in the case who are the legal heirs of the deceased. No question of prospective or retrospective operation is involved. The right of appeal and the format of appeal is regulated by law and it is century old practice that a person who is legally to be affected by the decision or who by law is a necessary party has to be impleaded as a party, declaration to that effect is not a fresh or a future declaration or interpretation of law which would apply prospectively, but is declaration of the existing law. Hence the authorities relied upon by him are of no help to him in this case.
19.Order XXII of the Supreme Court Rules, 1978 deals with the criminal appeals. Although rule relates/back to Section 42(11) of the Constitution, however these are rules of general application to the criminal appeals in the Supreme Court. Rule 8 of Order XXII reads as follows:'- "8. Due notice shall be given to the parties concerned of the date fixed for hearing of the appeal.
The accused may, where he so desires, present his case by submitting his arguments in writing, and the Court shall consider the same at the hearing of the appeal."
The words "parties concerned" are of vital importance. The word "parties" clearly connotes the parties arrayed in the appeal and the word "concerned" connotes the party who is concerned or necessary, given the nature of the case. The words are almost unanimous to interest parties in the case. As referred in para 13 above, while citing the case reported as Syed Kanchan Ali v. Shahjahan and others [PLD 1962 Dacca 192], a person injured or aggrieved by the crime, a witness in the trial, and an informant or a complainant on whose information the machinery of law is set in motion, would, under circumstances, come within the description of any party interested, which in other words means the concerned party. This implies that concerned have to be impleaded as party in the case so that a notice is issued by the Court to them. Legal heirs of a slained person, in view of Islamic Penal Laws relating to Hadd, Qisas' etc. are the real concerned persons.
20.As far applications dated 10.6.2006 filed for arraying legal representatives or treating the appeal as revision are concerned, these are filed after seventy six days of the objection raised against maintainability of the appeal and six months and ten days after the order of the Shariat Court, while the maximum period allowed for appeal against the order of the Shariat Court in the Supreme Court is sixty days under Section 25 of the Islamic Penal Laws Act. In case the applications are allowed it would amount to allowing a time-barred appeal against the verdict of the Shariat Court. Similar period is provided for revision. The appeal can be converted into revision if it is filed within limitation and the interest of justice so demand. The request for conversion is also made after the expiry of period, hence it also suffers from same legal defect.
In view of the aforestated reasons this appeal is incompetent, which is hereby dismissed.