' MUHAMMAD AZAM KHAN, C.J.---The above captioned both the appeals arise out of the judgment of the Shariat Court dated 29-3-2007 in the following circumstances.
2. A case under sections 324, 337, 147, 148, 149 and 109, APC was registered at Police Station Islamgarh on a report made by Shaukat Ali. The injured died during investigation and section 302, A.P.C. Was added. After investigation, the challan was presented under the aforesaid provisions of law in District Criminal Court Mirpur on 5th November, 2003. After conclusion of trial, the District Criminal Court Mirpur vide judgment dated 27th August, 2005 found Muhammad Ilyas and Sajid Pervaiz guilty of offences under sections 302, 324, 337, APC and section 13 of the Arms Ordinance, 1965, while Kamran was found guilty of offence under section 13 of the Arms Ordinance, 1965.
Muhammad Ilyas was convicted and sentenced to death sentence as Tazir under section 302(b), A.P.C. Sajid Pervaiz was convicted under sections 302, 324, A.P.C. To undergo rigorous imprisonment for ten/ten years and a fine of Rs.20000/20000. He was ordered to further undergo rigorous imprisonment of four months in case of non-payment of fine. He was also convicted under section 337-A to Rs.20000/20000 as `Daman' and two/two years' imprisonment. The accused was also convicted to two years' imprisonment under section 13 of the Arms Ordinance, 1965. Kamran was also convicted under section 13 of the Arms Ordinance, 1965 to 2 years' imprisonment. The accused Allah Ditta, Kalsoom, Ejaz, Imran, Irfan, Naeem and Kamran were acquitted of the charges under sections 302, 324, 147, 148, 149 and 109, A.P.C.
3. Dissatisfied from the judgment of trial Court, the convicts filed appeal in the Shariat Court against their conviction on 5th September, 2005, while the complainant Shaukat Ali filed appeal against the acquittal. A reference was also sent by the District Criminal Court to Shariat Court for confirmation of death sentence. A learned single Judge in the Shariat Court through a consolidated judgment partly accepted the appeal filed by the convicts. Sajid Pervaiz was acquitted of the charges. Muhammad Kamran was also acquitted of the charges under sections 302 and 324, A.P.C., however, his conviction under section 337, APC and section 13 of the Arms Ordinance was maintained. The death sentence awarded to Muhammad Ilyas was altered into life imprisonment. He was also declared entitled to benefit under section 382-B, Cr.P.C. The acquittal appeal filed by Shaukat Ali was dismissed.
4. Dissatisfied from the judgment of the Shariat Court, two appeals have been filed in this Court; one by Muhammad Ilyas and Sajid Pervaiz against their conviction and the other by Shaukat Ali, complainant, against the acquittal and for enhancement of sentence.
5. At the very outset Raja Ghazanfar Ali Khan, the learned Advocate-General, apprised the Court that the trial Court has convicted Muhammad Ilyas to death sentence. The appeal and the reference were heard and disposed of by a single Judge in the Shariat Court. This Court in a case titled Jawad Ayub v. Sadaqat Hussain and another (2011 SCR 263) has held that the murder reference for confirmation of death sentence has to be heard and disposed of by at least two Judges. Therefore the appeal has to be accepted and the case be remanded to the Shariat Court for rehearing by a Bench of at least two Judges. He also drew the attention of the Court towards other appeal titled Shaukat Ali v. Allah Ditta and others and argued that Shaukat Ali is not a legal heir of deceased, therefore, in the light of judgment of this Court delivered in a case titled Muhammad Malik v. Karam Elahi and another PLD 2011 SC (AJ&K) 1, the complainant, who is not a legal heir, cannot file appeal against acquittal.
6. Ch. Muhammad Taj, the learned counsel for Allah Ditta and others, argued that the appeal of Shaukat Ali is not competent in the light of Muhammad Malik's case, referred to above, therefore, the same may be dismissed, however, the appeal of Muhammad Ilyas has to be heard on merits.
7. Mr. Khalid Rasheed Chaudhry, the learned counsel for the complainant, argued that it is correct that Shaukat Ali is not legal heir of deceased, but he himself is an injured witness and in the light of Muhammad Malik's case, referred to above, the injured witness is competent to file an appeal.
8. We have heard the learned counsel for the parties and perused the relevant record. While resolving the controversy that who can file appeal against the acquittal or enhancement of conviction and who can be termed as aggrieved, this Court in a case titled Muhammad Malik v.
Karam Elahi and another PLD 2011 SC (AJ&K) 1 observed in para 24 as under:-- "24. From the survey of case-law, it can safely be concluded that `person aggrieved' can file an appeal from acquittal or for enhancement of the sentence passed by the Tehsil Criminal Court in the. District Criminal Court, Shariat Court and this Court. No general definition can be laid down for `person aggrieved' broadly for the purpose of filing acquittal appeal or appeal for enhancement of punishment. The person whose legal right is injured, may be treated as aggrieved, but for the purpose of Qisas and Hadood laws, following may be termed as `aggrieved persons' who have right to file an appeal:-- ' In case of qatl-i-amd':-
(a) wali'/legal heir of the deceased;
(b) the Government/State. In case of hurt:
(a) victim himself and if he is minor, his 'wali' or upon death of the victim, his legal heirs;
(b) the Government/State."
' In the above referred case it has been held that only two categories of persons are entitled for filing appeal against the acquittal or enhancement. In the first category, the wali/legal heir of the deceased and in the second category the Government/State has the right to file appeal. In case of hurt, the victim himself and if he is minor his wali or upon his death his legal heirs can file appeal.
The Government/State is also competent to file an appeal. Since Shaukat Ali is not a legal heir of deceased, Masood Ahmed, he was only a complainant, he cannot file appeal against the acquittal, therefore, the appeal titled Shaukat Ali v. Allah Ditta and others is dismissed being incompetent.
9. While interpreting section 377, Cr.P.C. It, was observed in para 6 of Jawad Ayub's case, referred to above, as under:- "(6) The manifestation of the above referred statutory provisions is that only in case of imposition of sentences of death, Qisas and Hadood by the Courts of District Criminal Jurisdiction, the case has to be submitted to the Shariat Court for confirmation. The phraseology of section 377 of Criminal Procedure Code is clear and comprehensive that only in a reference submitted for confirmation of a sentence of death, Qisas or Hadood or in a case if the Shariat Court passes one of these sentences as a new sentence, the hearing of case and signing of the judgment by at least two Judges of the Shariat Court is mandatory whereas in all other cases hearing by two Judges of the Shariat Court is not the requirement of law. Therefore, the flaws in the judgment handed down in Appeals Nos.15, 16 of 2005 and 2, 3 of 2007 titled Muhammad Alam and another v. The State reported as 2009 SCR 458, stand removed and clarified in the above stated terms. The appeals shall be heard on merit."
' As is evident from the above, the Court has held that in a reference submitted for confirmation of a sentence of death, Qisas or Hadood or in a case if the Shariat Court passes one of these sentences as a new sentence, the hearing of case and signing of the judgment by at least two Judges of the Shariat Court is mandatory.
10. In the present case the reference for confirmation of death sentence was sent by District Criminal Court Mirpur, which was heard and disposed of by single Judge in the Shariat Court.
Therefore the impugned judgment is not maintainable.
11. The appeal is accepted. The judgment passed by the Shariat Court is set aside and the case is remanded to the Shariat Court for decision by the Bench consisting of not less than two Judges in the light of judgment delivered in Jawad Ayub's case.