1. ' This revision is directed against the order dated 23-8-1982 passed by the District Criminal Court, Rawalakote in a case under sections 302/307 and 34, A. P. C. Read with section 5 of the Islami Tazeerati Act pending before it and whereby it was held by the said Court that under Shariat Law the evidence of the women who are twain, is to be recorded together in presence of one another by the Court and to this assertion of the trial Court reference was made to Verse No, 282 of Surah- al-Baqarah' of the Holy Qur'an. Nothing pertaining to Sunnah' was quoted by the Court below in this respect and I do not think that there is any act of the Holy Prophet visible on the subject. The verse which was cited by the trial Court deals with the financial matters. The Qur'an says "O' you who believe 1 when you borrow one from another for a time stated, write it down and let a scribe write it down justly between you......And call to witness two witnesses of your men and if the two be not men, then a man and two women of those you agree Upon as witnesses so that if one of the twain errs, then the other will remind her And call witnesses when you are transacting business with one another." (282: Al-Baqarah).
2. It is nowhere evident that in a criminal case the principle or rule underlying the aforesaid verse of the Holy Qur'an was ever acted upon or exercised by Prophet, the great (peace be upon him). No `Sunnah' to follow this way with regard to a criminal case is there. A very delicate point is to be seen which appears to have escaped the notice of the interpreters and jurists. The female witnesses who are agreed upon by the parties are to be cited as marginal witnesses of the deed of debt to be reduced into writing as ordered by 'Allah' and if need arises for their evidence to be recorded when the subject-matter of the deed scribed or any term therein is disputed between the parties, the evidence of the female witnesses is to be taken together in presence of each other so that if one errs in respect of a certain fact while making her statement another will remind her of the error so committed or any omission made by her in the evidence. This is so because both the women are common witnesses of the parties for their being chosen by them for the purpose and they are, therefore, not supposed to depose to, merely as witnesses of a particular party but as witnesses of the contents of the instrument transacted between the parties who have agreed upon them as witnesses. Whereas in a criminal case this is not the position. Here the women witnesses of the occurrence of an offence, be the creation of the incident and so they become incidental witnesses.
3. No question arises between such parties for their selection of women to be made and mutually agreed upon thereof by them, to witness the occurrence. An offence is not a transaction of a civil nature to warrant an agreement between the parties for the arrangement of a required number of female witnesses by a mutual agreement to witness the incident. No such agreement is possible between the offender and the person offended.
4. Therefore, in criminal matters, the evidence of the women is to be recorded separately in absence of one another so that their veracity could be tested by putting them to cross-examination. The Qur'anic verse cited by the Court below deals with matters of civil nature and not with the criminal matters which constitute offences to be punished.
5. In the instant case there are only two female witnesses who are cited in the calendar of evidence as eye-witnesses of the occurrence and there is no male ocular witness to the occurrence to brine the offence of murder under section 5 of the Islaami Tazeerati Act. There must be two Muslim adult men having witnessed the occurrence of the offence of murder to bring it within the fold of {{URDU TEXT}}04423 `Qasas' (sentence by way of retaliation). This rule of evidence as provided by the Islaami Tazeerati Act itself does not exist in this case vide section 26(1) of the Islaami Tazeerati Act.
6. Therefore, under section 24(2) of the said Act this case is to be tried by the Sessions Judge alone and not by the District Criminal Court consisting of the Sessions Judge and District Qazi established under the provisions of the Islaami Tazeerati Act. This section reads as under:- {{URDU TEXT}} ' Section 5 of the Islaami Tazeerati Act was unwarrantedly and superfluously added to section 302/307/34 of the Penal Code as the ingredients of section 5 of the Islaarni Tazeerati Apt read with section 26(1) of the same Act were not available to the police to apply this section and so it is hereby deleted from the charge-sheet of the police against the accused. It is to be observed painfully that the investigating Officers do not go through the relevant law while Investigating a case and by application of inappropriate sections which do not apply to the circumstances of a case, create difficulty in the way of administration of justice and become a source of inconvenience to the persons concerned.
7. ' At a time the challan was presented to the District Criminal Court, it was the duty of the Sessions Judge and the District Qazi to go through the relevant law before entertaining the case for trial. This case was presented before the District Criminal Court on 11-8-1981 and no proceedings have so far been taken by the Court except the recording of the statements of the accused under section 242, Cr. P. C. This is a very sad state of affairs. The Presiding Officers of the Courts below are directed to be vigilant and dutiful in performance of their functions so that the litigants are not put to undue inconvenience and hardship thereby causing prolonged mental torture to them.
8. ' That being so, this revision petition is accepted and the impugned order of the trial Court is set aside and the proceedings so far taken by that Court for being without jurisdiction are hereby quashed and the case is forwarded to the Sessions Judge, Rawalakot for its trial according to law who shall dispose it of expeditiously to avoid further delay.