Chaudhary Muhammad Taj, J.--The above captioned two appeals arise out a judgment passed by the Shariat Court of Azad Jammu and Kashmir on 27.7.2002 as such are disposed of by this common order.
2. The facts are that a case under Sections 302 and 34 APC was registered on the report of Sardar Ahmad complainant, against appellants Muhammad Sarwar and Salamat Ali (Criminal Appeal No, 41 of 2002which after investigation was challaned before the District Court of Criminal Jurisdiction Mirpur under Sections 302 read with 34 APC and Section 13 of Arms Act, 1965. The trial Court after conclusion of the trial convicted appellant Muhammad Sarwar and sentenced him to life imprisonment R.I. under Section 302 and two years S.I. under Section 13 of Arms Act, 1965 while convicted and sentenced other appellant. Salamat. Ali under Section 302 read with 34 APC for the imprisonments he has already undergone. The benefit of Section 382-B Cr.P.C. was also extended to the convicts. This order was challenged before the Shariat Court of Azad Jammu and Kashmir through an appeal against the conviction and sentence by the appellants while the complainant party also filed appeal for enhancement of the sentences. The learned Shariat Court through a judgment recorded on 16.2.2000 held that statement of two lady prosecution witnesses, namely Mst. Farzand Begum and Mst. Nasreen Begum was recorded jointly which was held against law and thus sent the challan file back to the trial Court for recording the statement of Mst. Nasreen Begum and the trial Court was directed to re-submit the file to the Shariat Court for decision of the appeal on merits. The order was challenged before this Court where the order was modified to the extent that statements of both the witnesses referred above, namely Mst. Farzand Begum and Mst.
Nasreen Begum, shall be recorded instead of one witness Mst. Nasreen Begum as held by the Shariat Court. The trial Court recorded the statements of the prosecution witnesses and sent back the file to the Shariat Court where arguments were heard and the judgment impugned herein was passed whereby Appellant No, 1 Muhammad Sarwar was convicted and sentenced life imprisonment i,e, 25 years R.I. and two years S.I. under Arms Act. The other accused Salamat Ali was convicted and sentenced for the imprisonment which he had already undergone alongwith the punishment of two years under Arms Act. An appeal filed on behalf of the complainant was accepted to the extent of punishment of Salamat Ali under Arms Act and the rest of appeals were dismissed. This appeal challenges the aforesaid order.
3. Ch. Muhammad Azam Khan, who appeared on behalf of the convict appellants, argued that the appellants have been convicted and sentenced by the Shariat Court against law and mandatory procedure applicable to the case in hand. It was argued that previously the appellants were convicted and sentenced by the trial Court against which an appeal was filed before the Shariat Court of Azad Jammu and Kashmir which sent back the file to the trial Court for recording fresh evidence of two female prosecution eye-witnesses. The trial Court recorded the statements of the witnesses and sent back the file to the Shariat Court which has convicted and sentenced the appellants on the evidence which was not put to the appellants in the statement recorded under Section 342 Cr.P.C. It was also argued that the appellants were condemned without affording an opportunity to produce defence evidence. The learned counsel forcefully argued that the evidence not put to the accused has to be excluded from the consideration. It is also celeberated law that the accused cannot be condemned unheard as in this case they were not provided any opportunity to produce their defence against the aforesaid evidence. Purgation was not conducted by the trial Court which was mandatory under Section 26 of Islamic Penal Laws Act. The-learned counsel read out the judgments passed in the earlier round by the Shariat Court and this Court.
However, the learned counsel submitted that he reserves his right to argue the case on other merits after resolution of the aforesaid point.
4. Ch. Ali Muhammad, who appeared on behalf of the appellants in cross-appeal titled Sardar Ahmad and others vs. Muhammad Sarwar and another Criminal Appeal No, 39 of 2002, and also for the respondents in Criminal Appeal No, 41 of 2002 titled Muhammad Sarwar and another us.
Sardar Ahmad and others, argued that in the previous round of litigation the matter was finally concluded so far as the question with regard to the recording of statements of the lady witnesses is concerned. It was also finally resolved that the trial Court shall send back the file to the Shariat Court which has done accordingly and the Shariat Court has also passed order on the basis of evidence already on the record and the other evidence which was subsequently recorded.
However, the learned counsel admitted that it is against the law and procedure provided for.
5. We have heard the learned counsel for the parties and also gone through the record. The facts are not disputed. The learned Shariat Court in the previous round while hearing the appeal against the conviction and sentence recorded by the trial Court, held that the evidence of two female witnesses was not recorded in accordance with law as such sent back the file to the trial Court for recording the evidence of above referred one female witness. However, finally through an order passed by this Court the order was modified in the term that statements of both the witnesses shall be recorded afresh. The evidence was recorded and the file was re-submitted to the Shariat Court which passed the impugned order:
6. Both the learned counsel representing the parties are in agreement that the law and procedure adopted by the Shariat Court was against law. However, Ch. Ali Muhammad the learned counsel representing the complainant party, argued that the matter in previous round has been 'finally determined as such is not open to any consideration. It would be much relevant to appraise the judgment of this Court recorded in the previous round of litigation. It so appears that this Court attended mainly two points that the order passed by the Shariat Court of Azad Jammu and Kashmir was validly recorded in respect of sending the file to the trial Court for recording the statements of female witnesses separately under Section 428 Cr.P.C. The order was modified to the extent that statements of both the witnesses shall be recorded separately. However, the point with regard to putting this evidence which was subsequently recorded by the trial Court under Section 342 Cr.P.C. to the accused-appellants and the other point of providing opportunity to produce defence evidence were neither debated nor any resolution was made. An important question of law that how the Shariat Court without providing the opportunity of defence to the accused and without putting incriminating evidence recorded subsequently would pass the order, was not brought in the notice of this Court to avoid anomalous position faced today by adopting illegal procedure. There is another legal point which renders the judgment illegal and has to be set aside.
The law provides that under Section 26 of Islamic Penal Laws Act the witness shall be purgated by the trial Court. This Court has also held that it is mandatory provisions. Reference may be made to a case reported as Khushal Khan and another vs. State (Criminal Appeal No, 23 of 2001). For proper perception the observations by this Court in earlier round are hereby usefully reproduced:-- "9. We have given due consideration to the arguments raised at the Bar. The first question which needs resolution is as to whether the Shariat Court has committed an error in exercising the powers under Section 428, Cr.P.C., because this was not a case of recording `additional evidence' within the meaning of Section 428, Cr.P.C. and that the case should have been remanded as a whole after setting aside the conviction and sentence of the accused persons. It may be observed that after giving due consideration, we have come to the conclusion that even if the statements of female witnesses were recorded in both the cases, referred to above, the fact remains that as the mode adopted by the trial Court was not legally justified, the recording of their statements would fall within the purview of `additional evidence'. There is no authority in support of the view that if the statement of a witness is recorded but same is not admissible into evidence due to same illegality, the same, if recorded again, is not 'additional evidence' within the meaning of Section 428, Cr.P.C.; such a narrow construction cannot be placed on the expression 'additional evidence' appearing in, Section 428 Cr.P.O...............
17. The next question arises as to whether the only statement of one of the female witnesses in each of the cases, referred to above, is to be re-recorded or statements of both the two witnesses in each of the cases are to be re-recorded. After thoroughly going through the statements of the aforesaid four female witnesses, two in each of the appeals, referred to above, we have come to the conclusion that the statements of the concerned female witnesses in the relevant cases cannot be regarded to be the statements of one witness or the other, i,e, in Appeal No,. 5, it cannot be said that the statement recorded was either of Mst. Nasreen Begum or Mst. Farzand Beg-um and similarly, in Appeal No, 7 the statement purported to be the statement of Mst. Ruqiya Begum was her exclusive statement. Thus, we are of the opinion that the statements of both the female witnesses in the concerned cases should be recorded by the trial Court. Therefore, the judgment of the Shariat Court, wherein the statement of one of the female witnesses in each of the challans was directed to be recorded has been amended in terms that the statements of the concerned witnesses in both of the said cases shall be recorded by the trial Court as is required by the relevant law."
7. It may be mentioned that by now it is a settled proposition of law that statements of the female prosecution witnesses in a criminal case shall be recorded as laid down in qanoon-e-Shahadat' and Criminal Procedure Code, therefore, the statement of every witness shall be recorded separately as held by this Court in this case in the earlier round in the following words:- "15. It follows from what has been stated above that it is neither provided in Criminal Procedure Code in qanoon-e-Shahadat' or in any other law for the time being in force that the female witnesses in a criminal case should be examined jointly. Thus, we are of the opinion that the Shariat Court has rightly held that the two female witnesses in a criminal case are to be examined as has been laid down in qanoon-e-Shahadat' and the Criminal Procedure Code which is the law governing the trials in criminal cases."
This Court in a case titled Khushal Khan and another vs. State (Criminal Appeal No, 23 of 2001 decided on 5.11.2004) also resolved the aforesaid question of law in the following words: "8. In view of the above state of law, the appeal is accepted and the case is remanded to the trial Court with the direction that statements of the aforesaid female witnesses shall be recorded afresh separately and the trial Court shall also conduct the purgation of witnesses in accordance with law by setting aside the orders passed by the Shariat Court and the trial Court."
8. A perusal of the aforementioned citations shows that it is required that statements recorded jointly are illegal as such the consensus of the authorities is that the judgment has to be set aside and the matter has to be referred to the trial Court for fresh recording of the statements and then to decide the matter in accordance with law. It will not be out of place to mention that without observing the procedure mentioned above, the trial' becomes illegal as it is not possible in law that the evidence is recorded by the trial Court while the judgment is passed by the appellate Court.
The law does not support the aforesaid procedure as the fresh evidence cannot be put to the accused and the same cannot be taken into consideration without it. Additionally, the accused cannot be condemned without providing an opportunity to produce defence. It is also worth mentioning that purgation of witnesses required to be conducted by the trial Court cannot be undertaken by the Shariat Court which aspect alone is sufficient for setting aside the judgment.
This was the reason, both the learned counsel representing the convict-appellants and the complainant-appellants frankly conceded that illegality has been committed. Therefore, we are of the view that the judgment passed by the Shariat Court on the basis of the evidence which was neither put to the accused nor they were provided opportunity to rebut the same by producing defence evidence. The orders were passed without conducting the purgation of the witnesses as required under Islamic Penal Laws Act. This not only offends the mandatory procedure of law but also violates the golden principle that no one should be condemned unheard meaning thereby that the evidence against the accused persons should not only be put to them but they should also be provided opportunity of rebutting the same.
9. In view of the above discussion the appeal filed by the accused-appellants is accepted, the judgment of the Shariat Court is set aside and the case is remanded to the trial Court which shall record the statements of the accused under Section 342 Cr.P.0 and shall also provide opportunity to produce evidence if they so demand. The purgation of the witnesses shall also be conducted and after hearing the parties shall decide in accordance with law.